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Morality  of  prohibitory  liquor  law 


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THE   MORALITY 


OF 


Prohibitory  Liquor  Laws. 


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BY 


WILLIAM  B.  WEEDEN. 


BOSTON: 

ROBERTS      BROTHERS. 

1875. 


Entered  according  to  Act  of  Congress,  in  the  year  1875,  by 

KOBEUTS    BROTHERS, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


Camhridge  : 
Press  of  John  Wilson  ^  Son. 


THE    MORALITY 

OF 

PROHIBITORY  LIQUOR  LAWS. 


"  The  justest  laws  are  the  traest."  —  Epictetus. 

"  Civil  liberty  is  the  not  being  restrained  by  any  law,  but 
which  conduces  in  a  greater  degree  to  the  public  welfare."  — 
Paley. 

"  Good  and  stable  government  is  simply  or  nearly  impossible, 
unless  the  fundamentals  of  political  science  be  known  by  the 
bulk  of  the  people."  —  Hobbes. 


P  K  E  F  A  C  E. 


nn^HE  matter  of  these  pages  was  suggested  in 
a  paper  read  to  the  Unitarian  National 
Conference  at  Saratoga.  A  prominent  politician, 
a  sincere  and  eminent  advocate  of  prohibition, 
said  to  the  writer  directly,  "  This  is  an  old 
story  of  yours ;  it  is  worn  threadbare."  Inas- 
much as  several  able  members  of  that  capable 
association,  men  versed  in  the  literature  of  law 
and  social  science,  had  said  that  the  argument, 
whatever  its  merits,  was  novel  and  original, 
the  remark  of  the  politician  set  the  writer  into 
a  train  of  thinking.  The  able  men  knew  more 
of  the  philosophy  of  law,  but  the  politician 
represented  more  people.  It  is  perhaps  this 
stolid  indifference  among  persons  holding  high 
public  trusts  to  the  causes,  the  underlying 
principles,  and  the  results  of  their  own  action, 
which  has  led  the  writer  to  develop  his  theme 
and   bring   it   before   the  whole  public.      The 


6  PREFACE. 

subject  is  so  important  in  all  its  bearings,  that 
any  sincere  study  of  it  can  do  no  harm,  and  must 
be  welcomed  by  all  thoughtful  persons. 

The  writer  believes  that  the  whole  fabric  of 
our  legal  and  political  action  has  been  strained 
and  injured  by  the  institution  and  administra- 
tion of  these  liquor  laws.  He  believes  that 
one  of  the  first  and  most  important  steps  in  the 
much  talked  about  reform  of  civil  government 
must  be,  to  turn  the  humane  temperance  im- 
pulse away  from  its  abnormal  action  in  law  and 
in  the  state,  and  to  give  it  natural  play  in  the 
ethical  improvement  of  the  individual  man  and 
of  society.  If  these  pages  contain  any  facts,  or 
show  any  reasons  which  may  help  to  forward 
this  issue,  his  labor  has  not  been  in  vain. 

W.  B.  W. 

Providence,  R.I.,  January,  1875. 


CONTENTS. 


Page 

Introductory     9 

Temperance  and  Abstinence 31 

The  Working  of  Prohibition 56 

The  Grounds  of  Prohibition 99 

Prohibition  and  Regulation 121 

Another  System 158 

Immoral  Law-Making 179 


INTRODUCTOEY. 


'TnHIS  is  not  an  argument  for  or  against  total 
abstinence.  The  movement  for  temperance 
reform  within  the  present  century  has  divided 
the  American  people  into  three  classes  :  those 
who  refuse,  those  who  use,  and  those  who 
abuse  liquors ;  or,  to  characterize  them  in  the 
briefest  terms,  abstinents,  temperates,  and  in- 
temperates.  The  distinction  between  absti- 
nence and  temperance  is  pure  matter  of  fact, 
which  the  words  embody  in  themselves.  Tem- 
perance and  intemperance  in  the  use  of  liquors 
are  as  old  as  the  vine  itself.  Americans,  with 
their  natural  love  of  association  and  organized 
action,  formed  societies  rather  more  than  fifty 
years  ago  to  withstand  intemperance. 

"As  soon  as  several  of  the  inhabitants   of  the 
United  States  have  taken  up  an  opinion  or  a  feeUng 


10  INTRODUCTORY, 

which  they  wish  to  promote  in  the  world,  they  look 
out  for  mutual  assistance ;  and  as  soon  as  they  have 
found  each  other  out,  they  combine.  From  that 
moment  they  are  no  longer  isolated  men,  but  a 
230wer  seen  from  afar,  whose  actions  serve  for  an 
example,  and  w^hose  language  is  listened  to.  The 
first  time  I  heard  in  the  United  States  that  a  hun- 
dred thousand  men  had  bound  themselves  publicly 
to  abstain  from  spirituous  liquors,  it  appeared  to  me 
more  like  a  joke  than  a  serious  engagement;  and  I 
did  not  at  once  perceive  why  these  temperate  citi- 
zens could  not  content  themselves  with  drinking 
water  by  their  own  firesides.  I  at  last  understood 
that  these  hundred  thousand  Americans,  alarmed  by 
the  2:>rogress  of  drunkenness  around  them,  had  made 
up  their  minds  to  patronize  temperance.  They 
acted  just  in  the  same  way  as  a  man  of  high  rank 
"who  should  dress  very  plainly,  in  order  to  inspire 
the  humbler  orders  with  a  contempt  of  luxury."  — 
Democracy  in  America.  By  De  Tocqueville.  Bow- 
en's  Trans.     Vol.  ii.  133. 

This  power  of  association  is  natural  and 
healthful  in  our  country.  As  the  reform  pro- 
gressed, the  term  "  temperance,"  together  "vvith 
the  idea  of  temperance,  as  it  is  applied  to  all 
other  appetites,  fell  into  abeyance.     Total  ab- 


INTRODUCTORY.  11 

'stinence    and   teetotalism    became    the   watch- 
words of  the  reformers. 

This  distinction  between  temperance  and 
abstinence  is  now  well  ingrained  in  mature 
individuals.  The  writer  accepts  this  social  fact 
as  he  finds  it,  and  proposes  no  direct  argu- 
ment on  this  issue.  He  would  not  touch  it 
indirectly,  if  the  main  question  did  not  some- 
times demand  it.  The  enthusiasm  of  the 
abstinents,  in  its  personal  and  legitimate  ex- 
pression, is  not  to  be  trifled  with,  nor  even 
argued  with.  It  is  a  noble  passion,  ever  ele- 
vating, though  sometimes  narrowing  the  man, 
and  is  entitled  to  respect  and  affectionate  re- 
gard from  all  of  us.  The  man  or  woman 
who  deliberately  abandons  liquors  is  generally 
moved  from  the  depths  of  the  soul.  Those 
who  have  suffered,  not  in  themselves,  but  in 
the  wasted  lives  of  their  friends,  cherish  a 
passion  for  abstinence,  which  is  beyond  and 
above  criticism.  We  say  again,  that  we  honor 
this  emotion  as  one  of  the  grand  forces  of 
humanity.  . 


12  INTRODUCTORY. 

The  moral  influence  of  abstinents  should 
likewise  have  the  fullest  play.  The  personal 
power  of  one  who  refuses  an  indulgence  is  the 
strongest  motive  to  influence  the  self-indul- 
gent. Society  should  favor  this  power  of  the 
individual  by  every  means  possible. 

It  is  the  civic  attitude  —  using  this  term  in 
the  lack  of  a  better  —  of  the  abstinents  which 
the  writer  would  call  into  the  discussion.  We 
would  ask  all  abstinents  to  consider  carefully 
their  bearing  toward  society  in  its  forms  of  law 
and  civil  government. 

By  as  much  as  we  exalt  and  dignify  the  moral 
power  of  the  abstinents,  by  so  much  do  we 
dread  its  waste  or  misuse  in  the  struggle  to 
maintain  laws  faulty  in  conception,  impossible  in 
execution.  We  do  not  expect  to  convince  the 
old  teetotal  war-horses,  who  started  in  youtli 
determined  to  force  law  into  total  abstinence. 
These  men,  made  morbid  by  their  horror  of 
drink  and  by  years  of  contest  with  reckless  rum- 
sellers,  have  lost  the  sense  of  justice  which  keeps 
freedom  alive.     An  old  mechanic,  whose  thumb 


INTRODUCTORY.  13 

is  made  callous  by  long  use  of  his  tool,  no  longer 
guides  it  by  the  quick  and  supple  sense  which 
controlled  it  in  his  youth  ;  he  moves  it  by  an 
old  instinct ;  so  these  teetotalers,  blunted  in 
the  struggle,  fail  to  lind  tyranny  in  any  law 
against  rum,  or  moral  perversion  in  any  legal 
wrong  which  aims  at  right.  A  younger  genera- 
tion is  coming  forward,  who  see  the  fearful 
strain  upon  law  which  our  national  life-struggle 
and  our  material  prosperity  have  brought  upon 
us.  We  would  ask  of  them  to  consider  from 
their  own  point  of  view  their  attitude  toward 
law,  —  not  any  particular  statute,  but  those 
great  principles  of  government  which  hold  so- 
ciety together. 

The  civic  attitude  of  the  abstinents  may  be 
briefly  stated  thus.  Liquor  is  a  poison :  always 
dangerous,  it  is  positively  bad  for  healthy 
people.  To  use  it  is  to  incur  a  fearful  risk  for 
ourselves,  to  injure  others,  to  injure  the  state ; 
let  us  stop  the  use  of  it.  We  are  aware  that  not 
all  abstinents  claim  that  liquor  is  a  poison,  but 
tliis  is  the  attitude  of  the  party  as  a  whole.    Soci- 


14  INTRODUCTORY. 

etj  in  mass  never  would  say  outright  that  liquor 
was  a  poison,  and  was  always  bad.  Its  course 
was  curiousl}^  inconsistent.  Thirty  to  forty 
years  ago  New  England  was  greatly  shaken  by 
the  total  abstinence  movement.  The  imagina- 
tion of  the  people  Avas  powerfully  moved,  and 
their  moral  sense  was  quickened  into  new  ac- 
tion. Public  sentiment  was  so  strong  that  absti- 
nence became  common  and  temperance  almost 
universal  in  the  villages.  In  cities  the  current 
was  in  the  same  direction,  though  less  decided, 
and  the  intemperate  drinkers  became  fcAv.  The 
reformers  then  cherished  the  hope  that  a  new 
generation,  educated  under  the  abstinence  prin- 
ciple, would  further  strengthen  public  senti- 
ment ;  that  the  use  of  liquors  would  almost  or 
quite  cease  among  decent  people  ;  and  that  the 
whole  moral  force  of  the  better  disposed  ele- 
ments of  society  would  restrain  the  few  who 
could  not  control  their  passions,  or  the  intem- 
perates. 

This  was   too  slow  a   process   for   the   more 
ardent  of  the  abstinents.     They  determined  to 


INTRODUCTORY.  15 

turn  the  force  already  acquired  into  a  new  chan- 
nel, and  to  bring  the  whole  power  of  society, 
through  the  administration  of  law,  to  bear  on 
the  use  of  liquors.  This  system  culminated  in 
the  Maine  Law,  so  called,  Avhich,  in  its  various 
forms  of  prohibition  and  execution  by  state  con- 
stabularies, has  dragged  its  way  through  legis- 
latures and  courts  for  more  than  twenty  years. 

How  were  these  laws  made,  and  how  ad- 
ministered ?  The  abstinents  in  New  England, 
where  these  laws  have  developed  most  strongly, 
were  never  a  majority .^     The  main  body  of  the 

1  We  seldom  realize  how  small  a  nmnber  of  voters  actu- 
ally believe  in  prohibitory  law.  We  cite  from  the  "  New  York 
Evening  Post "  :  — 

"  One  of  the  points  in  political  discussion  seems  to  have  been 
pretty  well  settled  by  the  recent  elections  ;  namely,  that  the 
people  do  not  approve  of  sumptuary  laws,  and  that  no  party 
of  any  consequence  can  be  organized  upon  the  policy  of  prohib- 
iting instead  of  regulating  the  sale  of  intoxicating  liquors.  We 
have  not  yet  the  full  returns  of  the  vote  in  this  State,  but  from 
the  indications  we  judge  that  the  prohibitory  vote  amounted 
to  only  a  few  thousands,  although  the  prohibitory  candidate 
for  governor,  Mr.  Myron  H.  Clark,  was  formerly  an  influential 
politician  and  once  held  the  governor's  office.  In  Massachu- 
setts Mr.  Talbot  was  defeated,  although  the  rest  of  the  Kcpub- 
lican  State  ticket  received  substantial  majorities  of  the  popular 
vote,  because  he  is  an  uncompromising  prohibitionist,  and 
would  have  stood  in  the  way  of  modifying  the  present  prohib- 


16  INTRODUCTORY. 

people  were  temperates,  and  we  mean  to  include 
in  this  class  every  one  who  uses  and  does  not 
abuse  liquors,  whether  by  the  teasj)oonf  ul  or  by 
the  glass.  After  the  first  excitement  of  the 
Washingtonian  reform  was  over,  the  moderate 
men  would  not  admit  in  fact  that  the  use  of 
liquors  was  always  bad.  They  would  not  even 
submit  to  strict  medical  rule.  In  conduct  each 
man  should  be  his  own  physician,  and  prescribe 
when  the  little  for  the  stomach's  sake  was  nec- 
essary. This  Avas  a  freeman's  privilege,  and 
they  would  keep  it.  We  are  not  speaking  of 
social  drinkers  nor  tippling  convalescents,  but 
of  the  great  body  of  sober,  discreet  citizens,  who 
were  neither  abstinents  nor  intemperates.  Their 
votes  have  decided  all  the  prohibitory  issues. 
These  men  seemed  to  move  in  a  sort  of  intellect- 
ual stupor,  brought  on  by  the  moral  enthusiasm 
of  the  abstinents  and  their  own  contemplation 

itory  law.  In  Oliio,  with  the  aid  of  the  women's  temperance 
crusade,  the  prohibitory  vote  was  less  than  ten  thousand.  And, 
last  and  least  of  tlie  instances  we  now  recall,  in  Illinois,  where 
the  total  vote  for  State  officers  was  more  than  throe  hundred 
thousand,  the  highest  vote  for  a  candidate  of  the  prohibition- 
ists was  1,446,  or  less  than  half  of  one  per  cent." 


INTRODUCTORY.  17 

of  the  horrors  of  intemperance.  Any  thing  to 
stop  traffic  in  the  accursed  stuff,  the  abstinents 
cried  out.  Law  after  law  was  enacted  in  differ- 
ent States  ;  the  temperates  blindly  voting  what- 
ever was  wanted.  Lawyers  shook  their  heads, 
and  physicians  doubted,  but  the  current  moved 
on.  Possibly  the  legal  outlet  afforded  a  relief 
from  the  excitement  of  the  moral  impulse  under 
which  the  community  labored.  To  put  one 
moral  reform  under  control  of  government  and 
get  it  out  of  the  daily  duty  of  the  individual, 
seemed  a  gain  to  some  short-sighted  persons. 
Nevertheless,  steady-minded  people  could  not 
vote  it  a  poison.  The  statutes  were  all  arranged 
with  contrivances  to  allow  the  use  under  one 
and  another  sort  of  fiction.  The  contrivances 
and  evasions  passed  into  ordinary  customs,  while 
the  statutes  were  constantly  growing  more  strin- 
gent technically. 

The  abstinents,  in  their  civic  attitude,  as  we 
term  it,  took  nearly  the  same  ground  which 
of  old  the  church  held  in  its  administration  of 
theology  through  its  relation  with  the  state.     It 


18  INTRODUCTORY. 

was  evil  to  hold  a  wrong  opinion  in  theology,  a 
heresy;  it  injured  the  holder,  it  injured  his 
neighbor,  injured  the  state.  It  seemed  good  to 
authority  in  the  olden  time  to  restrain,  imprison, 
even  to  kill  the  heretic.  Modern  liberty  would 
say,  the  bad  opinion,  the  heresy,  will  work  itself 
out  sooner  if  let  alone  by  authority.  We  are 
aware  some  abstinents  would  say  they  mean  to 
restrain  the  individual  not  in  his  own  rights  of 
liberty,  but  in  his  power  to  injure  others,  when 
they  make  a  prohibitory  statute.  We  hope  to 
show  farther  on,  that  they  must  begin  by  tyr- 
anny over  the  individual,  and  we  assume  that 
position  now.  No  teetotaler  ever  viewed  the 
drunkard  or  the  drinking  corruption  with  greater 
horror  than  Loyola  and  Torquemada  saw  the 
heretic  and  the  sinful  results  of  heresy.  To 
them,  any  use  of  power  any  force  which  we 
call  tyranny,  was  better  than  the  sufferance  of 
wrong  belief,  which  would  carry  souls  to  hell. 
It  is  only  latel}^  that  civil  government  has  aban- 
doned that  control  over  the  opinions  of  the  in- 
dividual.     The  principle  was  not  confined  to 


INTRODUCTORY.  19 

any  form  of  government ;  it  belonged  to  human 
society,  and  dwelt  alike  in  theocracy,  papacy, 
and  constitutionally-established  church.  Our 
puritan  fathers  did  their  full  share  of  this  sort 
of  legal  compulsion  for  moral  ends.  The  right 
to  drink  or  not  drink  liquors  is  an  individual 
right,  just  as  much  as  eating  is  individual,  though 
the  whole  population  should  hover  between  dys- 
pepsy  and  apoplexy. 

However  unwise  the  abstinents  might  be  as 
citizens,  they  were  at  least  consistent  with  their 
own  moral  purpose  and  intention  toward  the 
state.  If  every  one  had  thought  just  as  they 
thought,  a  statute  of  prohibition  might  have 
been  maintained.  If  a  very  large  majority  had 
sincerely  held  the  abstinent  view,  and  had 
effectively  abstained  from  any  use  of  liquors, 
the  law  could  have  been  administered  as  well  as 
other  laws  on  which  the  whole  community  agree. 
The  law  against  killing,  for  example,  is  not  per- 
fect ;  but  it  is  maintained,  and  even  the  classes 
restrained  would  hardly  think  of  repealing  it. 

There  was  no  majority  either  for  abstinence 


20  INTRODUCTORY. 

or  for  abusing  drink.  There  were  small  mi- 
norities at  either  end  of  the  moral  and  social 
scale ;  these  classes  knew  their  own  mind. 
The  abstinents  said,  in  the  old  Mosaic  spirit, 
"  Thou  shalt  not  drink,"  ^  and  enforced  the  pre- 
cept by  their  own  example.  The  intemperates 
said,  "  Drink,  we  will."  Either  of  these  classes, 
generally  speaking,  cared  more  for  their  own  will 
in  this  question  than  for  any  other  issue  of 
politics.  It  was  a  political  motive  to  them, 
because  the  consciousness  of  each  individual 
was  so  much  excited  in  opposite  directions :  one 
toward  drink,  the  other  toward  abstinence. 
The  question  never  came  to  a  square  issue  as 
other  political  topics  have  done  in  our  history. 
Between  the  two  minorities  was  an  overwhelm- 
ing majority  of  temperates.  This  majority  made 
the  main  bulk  of  the  political  parties,  —  Whig, 
Anti-slavery,  Democrat,  or  Republican.      The 

1  There  is  no  essential  reason  why  the  word  "drink"  or 
"drinking  liabits"  shonld  be  referred  to  alcoholic  liquors 
rather  than  to  other  liquids.  This  use  is  so  well  established, 
and  will  save  so  much  circumlocution,  that  the  writer  will 
accept  it,  though  it  is  vulgar. 


INTRODUCTORY.  21 

compact  body  of  abstinence  voters  brought  a 
terrible  pressure  to  bear  on  this  great  mass  of 
citizens  always  moving  at  half-tide  on  the  moral 
question  of  temperance  or  abstinence.  These 
temperates  had  political  motives  strong  in  them- 
selves and  in  their  kind.  The  Whig  desired  his 
measures,  the  Democrat  wanted  his,  the  Repub- 
lican would  prohibit  slavery,  the  Conservative 
would  save  the  Union,  and  all  were  working 
through  that  common  machinery  of  parties  and 
political  agitation  which  must  always  work  out 
politico-moral  issues.  Between  these  vari- 
ous and  fiery  political  passions,  the  earnest  ab- 
stinents  played  about,  log-rolling  hither  and 
thither.  When  there  was  no  state-movement 
there  would  be  small  "  pipe-laying  "in  the  towns  ; 
combinations  with  a  fraction  of  either  party  for 
or  against  an  individual  candidate  ;  voting  tick- 
ets split  in  such  a  manner  as  to  refract  a  shade 
of  one  partisan  against  a  bit  of  the  shadow  of 
another  aspirant,  until  the  political  vision  of  a 
plain  man  was  shaken  into  all  the  colors  of  the 
kaleidoscope. 


22  INTRODUCTORY. 

It  is  not  too  much  to  say  that  for  a  generation 
every  decent  politician,  clear-headed  enough  to 
see  the  results  of  politics,  has  lived  in  mortal 
fear  of  "  temperance  "  and  liquor-dealing  pol- 
icy. Any  disinterested  party  leader  will  say, 
as  numbers  have  told  the  writer,  that  politics 
were  corrupted  and  dragged  into  the  mire  by 
these  contending  agitators.  It  is  well  for  mor- 
alists to  remember,  that  while  we  cry  out  for 
statesmen,  and  censure  mere  politicians,  it  is  by 
politicians  only  that  state  movements  are  worked 
out.  Statesmen  are  rare  in  any  country  and 
any  time,  and  they  reach  the  citizen  and  voter 
only  by  the  help  of  politicians.  If  Abraham 
Lincoln  had  not  been  an  adroit  politician,  as 
well  as  a  far-seeing  statesman,  he  never  would 
have  led  the  American  people  through  a  strug- 
gle as  great  in  its  moral  issues  as  it  was  in  its 
political  results. 

Abstinents  could  not  see  this  principle,  — 
would  not  see  it :  they  were  intent  on  a  great 
moral  purpose.  What  mattered  a  little  more  or 
little   less   corruption,  where  all  was  corrupt? 


INTRODUCTORY.  23 

Your  transcendental  moralist,  breathing  the 
eternal  ether  of  goodness,  sees  no  practical  dif- 
ference between  gold  alloyed  with  silver  and 
gold  alloyed  with  lead  ;  they  are  all  one  in  the 
market  where  all  metals  are  as  dross.  The 
fierce  abstinent  said  to  the  temperate,  Whatever 
you  claim  for  your  own  individual  right,  do  you 
believe  the  state  has  a  right  to  make  drunkards, 
to  make  paupers  and  criminals,  to  license  in- 
iquity ?  It  was  decent  to  answer,  No.  Politically 
stupid  as  it  was,  legally  illogical  and  dogmatic 
as  it  was,  it  became  respectable  for  the  average 
voter  to  answer.  No.  "  Then  vote  prohibition," 
the  men  who  were  in  earnest  said,  and  as  ear- 
nestness always  carries  force,  they  had  their 
way.  The  men  who  should  have  known  better 
had  their  minds  filled  by  other  and  natural 
political  interests,  so  they  never  actually  grap- 
pled with  this  legislative  liquor  agitation  as 
its  importance  demanded.  Besides,  there  were 
many  motives  combining  to  bewilder  the  tem- 
perance voter.  If  he  did  not  like  the  political 
issue  offered  by  the  abstinent,  he  liked  still  less 


24  INTRODUCTORY. 

to  be  classed  with  the  liquor-dealing,  liquor- 
guzzling  interest.  If  not  quite  harmonizing 
with  the  one,  he  could  not,  consistently  with  his 
own  average  action,  go  with  the  other.  Then, 
as  mentioned  above,  there  was  a  sort  of  bewil- 
dered laissez-faire  morality  in  putting  the  dread- 
ful question  away  from  the  individual.  To 
consolidate  the  lazy,  half-hearted  emotion  which 
was  excited  by  the  appeals  of  abstinents  and 
abstaining  inebriates  into  some  sort  of  law, 
which  the  state  should  be  responsible  for,  and 
which  society  might  possibly  work  out,  was  to 
get  rid  of  an  ugly  question  within. 

Thus  statute  after  statute  was  invented  or 
evolved ;  broken,  tinkered,  and  refitted ;  dam- 
aged, whetted,  and  repaired,  tlirough  a  sicken- 
ing cycle  of  political  history. 

No  one  changed  his  habits  by  reason  of  his 
vote  for  a  liquor  law.  There  was  no  moral 
responsibility  for  the  rank  and  file  in  voting  at 
the  polls.  A  voted  for  Jones  because  he  was 
"  sound  on  the  goose,"  and  Jones  was  commit- 
ted to  a  small  caucus  of  abstinence  managers. 


INTRODUCTORY.  25 

B  voted  for  Jones  because  it  was  respectable, 
and  our  church  generally  supported  hhu.  Thus 
Jones,  and  more  Joneses,  big  and  little,  went 
up  to  the  legislature,  politically  drugged ;  sense- 
less under  an  ansesthetic  worse  than  opium  or 
brandy.  To  corrupt  a  citizen  is  bad  enough ; 
to  corrupt  a  legislature  is  to  spoil  the  chief 
source  of  citizens,  —  the  laws  under  which  they 
develop. 

There  was  no  strict  moral  accountability  in  it 
all.  Neither  A  nor  B  changed  his  habits  be- 
cause he  had  voted  for  Jones,  nor  did  Jones 
change  his.  Each  ordered  his  case  of  wine  or 
bought  his  bottle  of  whiskey  just  as  coolly  as  if 
he  had  not  stood  for  the  principle  of  absolute 
prohibition  at  the  polls.  If  the  laws  meant  any 
thing,  if  there  was  any  thing  under  the  prohibi- 
tion talk,  the  meaning  was  that  the  traffic  should 
be  stopped.  Perhaps  the  voter  went  to  his 
apothecary's  and  certified  to  a  constructive  lie, 
that  he  wanted  a  bottle  of  liquor  "  for  medici- 
nal or  mechanical  use,"  and  piously  thanked 
heaven  he  was  not  like  the  vagabond  seller  or 


26  INTRODUCTORY. 

drinker,  who  broke  the  law  at  the  corner.  Yet 
A  and  B  knew,  Jones  knew ;  Jones  knew  that 
A  and  B  knew  when  they  voted  that,  they  never 
meant  to  execute  the  statute  as  they  enforced 
the  laws  against  stealing.  Suppose  Jones  had 
been  caught  breaking  a  bank  vault,  after  legislat- 
ing on  robbery,  would  any  sane  voter  think  of 
sending  him  to  make  laws  again  ? 

It  is  this  befogging  of  the  political  intellect, 
this  stupefaction  of  the  moral  consciousness  by 
drugging  it  with  political  impossibility;  it  is 
these  things  that  the  writer  would  ask  candid 
and  thoughtful  persons  to  consider.  We  hold 
that  the  abstinents,  inspired  by  a  noble  and 
passionate  emotion,  capable  of  enormous  moral 
influence,  have  prostituted  it  in  chasing  an  igni% 
Ifatuus  through  the  mire  of  politics.  We  hold 
that  the  temperates,  halting  in  their  opinions, 
inconstant  in  moral  purpose,  bewildered  in  po- 
litical sense,  have  vainly  tried  to  impose  a  des- 
potism upon  citizens  equal  before  the  law.  We 
lay  down  the  following  propositions:  — 


INTRODUCTORY.  27 

I.  Temperance  and  abstinence  in  regard  to 
liquors  are  not  similar  nor  convertible  terms. 
They  represent  two  distinct  principles  of  living, 
however  the}^  may  be  named.  These  two  prin- 
ciples should  be  equal  before  the  law  of  the 
state. 

II.  The  true  province  of  legislation  lies  in 
the  abuse  of  liquors,  or  in  the  abuse  of  the 
drinker.  The  use  of  liquors  belongs  to  the 
individual,  and  lies  beyond  legislation. 

III.  Prohibition  is  based  on  the  theory  that 
all  use  of  liquors,  except  for  medicinal,  mechani- 
cal, chemical,  or  artistic  purposes,  is  wrong. 
This  theory  cannot  be  established  either  by 
science^  or  in  the  facts  of  the  living  of  the 
people.  A  law  so  badly  conceived  cannot  be 
executed. 

IV.  Prohibition  refuses  to  recognize  the  natu- 
ral laws,  stated  above  in  I.,  and  it  has  failed. 
The  statutes  are  not  executed  in  any  fair  sense, 
or  as  other  penal  laws  are  executed. 

^  See  Appendix.  "We  have  not  exhausted  a  topic  which 
would  require  a  volume  ;  but  the  reader  will  find  ample  proofs 
of  this  position,  drawn  from  unquestioned  scientific  authorities. 


28  INTRODUCTORY. 

V.  Laws  ill  grounded  and  ill  executed  cause 
the  worst  immorality  in  the  state. 

The  writer  would  gladly  have  treated  the 
subject  in  the  order  of  the  foregoing  analysis. 
To  his  mind,  the  reasons  which  obtain  against 
prohibition  are  inherent,  growing  out  of  the 
nature  of  the  system  itself.  But  long*  experi- 
ence has  established  the  truth,  that  the  most 
effective  mode  of  discussion  is  to  state  the  facts, 
then  the  theories  and  expositions  which  those 
facts  suggest. 

We  shall,  therefore,  state  the  principles  of 
temperance  and  abstinence  which  issue  in  the 
theories  of  license  and  prohibition;  and  give 
some  of  the  most  essential  facts  of  prohibitory 
legislation  as  they  have  occurred. 

We  will  then  review  the  claims  of  prohibi- 
tion from  the  stand-point  of  those  who  made 
and  sustain  the  laws  ;  and  afterward  consider 
the  principles  of  prohibition  and  regulation  from 
our  own  point  of  view. 

We  shall  then  detail  a  better  system,  or  one 
which,  in  our  opinion,  has  a  fair  chance  of  suc- 
cess. 


INTRODUCTORY.  29 

Lastly,  we  shall  examine  the  whole  matter  of 
this  legislation  in  the  light  of  the  harm  it  has 
done,  or  from  the  ground  of  that  morality 
which  is  the  basis  of  all  law. 


TEMPERANCE   AND  ABSTINENCE. 


'T^HE  writer  has  been  publicly  censured  for 
his  use  of  the  word  "  temperance  "  as  dis- 
tinguished from  "  abstinence."  The  dispute 
shows  that  the  ideas  embodied  in  the  words  are 
ill-defined  and  not  clearly  established  in  the 
minds  of  many  who  use  them.  We  believe  that 
the  moral  state,  or,  as  our  French  friends  would 
say,  the  morale  of  society,  will  be  bettered  when 
all  interested  settle  and  define  their  own  mean- 
ing and  their  own  practice  regarding  the  use 
of  liquors.  If  society  means  temperance,  let 
it  say  so ;  if  it  means  abstinence,  let  it  say  so ; 
nothing  is  to  be  gained  by  substituting  the  one 
idea  or  word  for  the  other. 

Shakspeare  always  uses  the  word  in  the  mean- 
ing of  the  modern  term,  "  self-control,"  apply- 


32  PROHIBITORY  LIQUOR  LAW, 

ing  it  sometimes  to  all  the  passions  and  again 
to  the  appetites. 

"  What  pleasure  was  he  given  to?" 

"Ratlier  rejoicing  to  see  another  merry  than 
merry  at  any  thing  which  professed  to  make  him 
rejoice;  a  gentleman  of  all  tempercmceP  ^ 

Neither  does  the  solid  English  of  King  James's 
version  of  the  Bible  ever  show  any  confusion  of 
these  terms. 

"And  as  he  reasoned  of  rigliteousness,  temperance^ 
and  judgment  to  come,  Fehx  trembled."^ 

"But  the  fruit  of  the  spirit  is  love,  joy,  peace, 
long-suifering,  gentleness,  goodness,  faith,  meekness, 
temperance  ;  against  such  there  is  no  law."^ 

And  from  the  opposite  direction,  St.  Peter 
indicates  his  notion  of  temperance. 

"  For  the  time  past  of  our  hfe  may  suffice  us  to 
have  wrought  the  will  of  the  Gentiles,  when  we 
walked  in  lasciviousness,  lusts,  excess  of  wine."  ^  .  .  . 

The  following  citations  indicate  the  drift  of 
the  word,  which,  from  the  control  of  all  the 
passions,  was  rather  limited  to  the  three  master- 

i  Measure  for  Measure,  iii.  3.  ^  Acts,  xxiv.  25. 

3  Gal.  V.  23.  4  1  Peter,  iv.  3. 


TEMPERANCE  AND  ABSTINENCE.      33 

ing  appetites  of  the  flesh,   and  gradually  was 

applied  to  the  desires  of  eating  and  drinking 

almost  entirely :  — 

**  But  when  strong  passion  or  weake  fleshlinesse 
Would  from  the  right  way  seeke  to  draw  him  wide, 
He  would  through  temperance  and  stedfastnesse, 
Teach  him  the  weak  to  strengthen,  and  the  strong 
suppress." 

Spenser,  Farie  Queene,  II.  c.  4. 

"This  blessed  company  of  virtues,  in  this  wise 
assembled,  followeth  temperance,  as  a  sad  and  dis- 
creet matron  and  reverent  governess,  awaiting  dili- 
gently, that  in  any  wise  voluptie  or  concupiscence 
have  no  pre-eminence  in  the  soul  of  man."  —  Sm  T. 
Elyot,  The  Governor. 

"For  virtue  (quoth  Ariston  the  Chian),  which 
concerneth  and  considereth  what  we  ought  either 
to  do  or  not  to  do,  beareth  the  name  of  prudence  ; 
when  it  ruleth  and  ordereth  our  lust  or  concupis- 
cence, limiting  out  a  certain  measure  and  lawful 
proportion  of  time  unto  pleasures,  it  is  called  ^em- 
perancer  —  Holland's  Plutarch, 

*'  Drink  not  the  third  glass,  which  thou  canst  not  tame, 
When  once  it  is  within  thee  ;  but  before 
Mayst  rule  it  as  thou  list." 

Geo.  Hekbert  :   The  Church  Porch. 

"  Temperance  permits  us  to  take  meat  and  drink 
not  only  as  physic  for  hunger  and  thirst,  but  also 
2*  c 


34  PROHIBITORY  LIQUOR  LAW. 

as  an  innocent  cordial  and  fortifier  against  the  evils 
of  life,  or  even  sometimes,  reason  not  refusing  that 
liberty,  merely  as  a  matter  of  pleasure."  —  Wollas- 
TON,  Religion  of  Nature. 

*'  But  knowledge  is  as  food,  and  needs  no  less 
Her  temperance  over  appetite,  to  know 
In  measure  what  the  mind  may  well  contain." 

Furadise  Lost. 

Addison  is  discoursing  upon  eating  and  drink- 
ing wlien  he  says  :  — 

"It  is  impossible  to  lay  down  any  determinate 
rule  for  temperance.)  because  what  is  luxury  in  one 
may  be  temperance  in  another."  ^ 

Hardly  any  of  us  would  accept  Addison  for 
a  guide  in  this  direction  ;  but  his  literary  sense 
is  always  sure  and  safe. 

Old  Elyot  defines  abstinence  so  severely,  that 
it  would  deprive  our  total  abstinence  friends  of 
the  virtue  of  their  abnegation  while  a  prohibit- 
ory law  is  in  force. 

^'Abstinence  is  whereby  a  man  refraineth  from 
any  thing  whicli  he  may  lawfully  take." 

Cowper,  in  more  modern  thought,  expresses 
1  Spectator,  195. 


TEMPERANCE  AND  ABSTINENCE.      35 

the  plain  sense  of  the  word  as  it  prevails  in  our 
daily  use  :  — 

"  Caird  to  the  temple  of  impure  delight, 
He  that  abstains,  and  he  alone,  does  right." 

This  is  the  common  sense  of  Christianity  at 
this  moment.  If  a  thing  is  bad  in  itself,  let  it 
alone ;  if  a  thing  is  necessary  in  reasonable  liv- 
ing, then  it  is  not  bad.  The  contrast  between 
the  two  words  is  sharply  drawn  by  Gibbon  in 
his  portrait  of  the  philosopher  and  ascetic  em- 
peror, Julian :  — 

"  The  temperance  which  adorned  the  severe  man- 
ners of  the  soldier  and  philosopher  was  connected 
with  some  strict  and  frivolous  rules  of  religious 
abstinence,  and  it  was  in  honor  of  Pan  .  .  .  that 
Julian,  on  particular  days,  denied  himself  the  use 
of  some  particular  food." 

If  there  is  any  other  use  of  the  words  in 
standard  writers  previous  to  this  century,  or 
before  the  abstinence  reform  began,  the  writer 
in  diligent  search  has  been  unable  to  find  it. 
The  two  principles  are  different,  and  the  re- 
formers were  wise  when  they  abandoned  the 


36  PROHIBITORY  LIQUOR  LAW. 

great  word  "  temperance,"  which  is  general,  and 
laid  their  demands  on  the  limited  virtue  of 
"  abstinence,"  which  is  more  easily  defined  and 
capable  of  stricter  enforcement.  But  having 
changed  the  basis  of  the  regimen,  it  is  impossi- 
ble to  claim  both  words  for  the  one  system. 
Else  why  was  "  abstinence "  substituted,  and 
riveted  down  by  the  binding  adjective  total? 

Abstinence  is  a  sound  virtue,  but  restricted ; 
it  is  in  itself  a  passion,  a  strong,  narrow  motive, 
limited,  from  the  nature  of  the  case.  To  put 
it  into  the  place  of  temperance,  which  controls 
all  the  passions  as  well  as  appetites,  is  like  put- 
ting a  shrivelled  and  ascetic  monk  into  the 
form  of  the  wide-natured  Bayard  or  Sidney. 
These  exclusive  and  dogmatic  traits  beget  a 
certain  arrogance  in  the  abstinent  party,  which 
it  behooves  all  true  men  to  repel,  and  to  force 
back  into  the  region  of  impertinence,  where  it 
belongs.  i 

When  the  writer  read  his  paper  at  Sara- 
toga, directed  against  prohibitory  laws,  but  not 
against  temperance   or   abstinence,   on    coming 


TEMPERANCE  AND  ABSTINENCE.      37 

back  to  tlie  floor  of  the  convention,  a  person  in 
the  next  seat  said  to  him,  "Yon  mean  to  kick 
up  a  row,  I  suppose.  You've  no  principle 
about  it."  The  man  was  a  stranger,  and  judg- 
ing from  appearance,  decent  enough  in  the 
ordinary  relations  of  life.  There  was  nothing 
in  the  character  of  the  essay,  and  the  writer's 
wife  assures  him  there  is  nothing  in  his  per- 
sonal make-up,  which  should  lead  a  stranger  to 
suppose  that  he  was  an  unprincipled  man  in 
any  relation,  however  mistaken  he  might  be. 
If  he  had  offered  a  bank-note  at  the  United 
States  Hotel,  and  had  argued  it  was  good,  even 
though  it  should  finally  have  been  proven  to  be 
bad,  strangers  would  hardly  have  thought  it 
necessary  to  assume  that  he  was  uttering  coun- 
terfeit money  without  principle.  This  worthy 
stranger  had  schooled  himself  into  the  notion 
that  one  virtue  was  all  virtue,  and  that  any 
person  differing  must,  in  consequence,  be  a  bad 
man,  whatever  his  life  might  be.  That  is  ex- 
actly what  abstinence  is  not,  by  any  rule  of 
philosophy  ever  invented.     It  is  the  result  of  a 


38  PROHIBITORY  LIQUOR  LAW, 

powerful  feeling,  the  reaction  from  one  dan- 
gerous appetite  ;  it  is  not  an  Aaron's  rod  which 
shall  swallow  up  every  other  power  in  human 
nature. 

We  are  not  striving  to  make  points  against 
abstinence.  The  writer  thoroughly  believes 
that  good  morals  will  be  advanced  when  vror- 
thy  men  clarify  their  ideas  and  bring  their 
principles  to  the  bar  of  common  reason.  We, 
who  hold  to  the  doctrine  of  temperance,  are 
entitled  to  decent  respect  from  the  abstinents 
in  the  discussion,  and  we  will  have  it.  The 
burden  of  proof  is  not  yet  removed  from  the 
abstinents ;  they  have  never  yet  reformed  a  so- 
ciety and  brought  it  into  such  practical  accord 
with  their  system  that  they  can  claim  that 
system  to  be  the  only  rule  of  life,  and  then 
abuse  every  person  who  differs  from  their 
opinion. 

Much  has  been  accomplished  by  the  total 
abstinence  reform  in  New  England;  whether 
some  similar  results  could  not  have  been 
brought  about  by  simpler  means   is  matter  of 


TEMPERANCE  AND  ABSTINENCE.      39 

doubt.  We  do  not  mean  to  argue  by  implica- 
tion against  the  system  ;  we  only  suggest  that 
it  is  not  the  only  method  of  temperance,  and 
should  at  least  be  modest  until  it  shows  a 
society  reasonably  reformed,  and  not  held  in 
the  grip  of  a  tyrannical  law,  under  which  it 
writhes  and  shrinks.  Plenty  of  facts  illustrate 
this  individual  and  exceptional  character  of  the 
abstinence  system.  It  has  no  social  force  ex- 
cept through  tyranny,  as  we  shall  prove  farther 
on.  If  abstinence  wer§  the  best  living,  then  its 
votaries  should  live  by  themselves.  Accord- 
ingly they  tried  "  temperance  hotels."  They 
all  failed.  If  abstinence  were  the  safest  living, 
then  a  life  insurance  association  on  that  basis 
ought  to  be  the  best.  The  Phoenix  Company 
of  Hartford  attempted  to  found  its  business  on 
totally  abstinent  lives.  It  was  ably  managed, 
but  languished.  The  same  managers  changed 
the  basis  to  *'  temperate  "  lives,  and  achieved  a 
great  success.  We  can  learn  of  no  other  ex- 
periment where  any  company  confined  itself  to 
insuriuG:  abstinents. 


40  PROHIBITORY  LIQUOR  LAW. 

No  greater  reform  than  the  change  made  in 
the  drinking  habits  of  the  upper  classes  of 
England,  has  ever  been  perfected.  It  is  not 
necessary  to  go  back  to  Fielding,  with  his 
Squire  Westerns  and  drinking  chaplains.  Take 
the  testimony  of  one  whose  life  reached  over 
into  our  own  time.  Lord  Brougham  is  writing 
of  the  scenes  at  the  funeral  of  his  maternal 
grandfather.  These  persons  were  the  better 
sort  of  people  in  northern  England  and  south- 
ern Scotland.  Brougham's  mother  was  the  sis- 
ter of  the  historian  Robertson  :  — 

"  The  Duke  of  Norfolk  began  the  toasts  at  the 
funeral.  Many  toasts  followed.  The  guests  drank 
long  and  deeply.  The  funeral  then  proceeded  on 
its  way  to  the  parish  church  .  .  .  the  road  winding 
along  the  steep  banks  of  the  river  Eamont.  Ar- 
rived at  the  church,  the  hearse  was  met  by  the 
rector,  but  the  coffin  had  disappeared.  The  shock 
was  enough  to  sober  the  merry  mourners.  On 
searching  back,  the  coffin  was  discovered  in  the 
river,  into  which  it  had  fallen,  pitched  down  the 
steep  bank.  .  .  .  The  shock  and  the  scandal  pro- 
duced by  all  this  had  the  effect  not  only  of  sobering 
everybody,  but  of  putting  an  end  to  such  disgrace- 


TEMPERANCE  AND  ABSTINENCE.      41 

ful  orgies  in  tlie  county  for  the  future."  —  Life  and 
Times  of  Lord  Brougham^  hy  himself.     I.  19. 

An  Irish  wake  and  funeral  had  a  similar 
accident  in  the  suburbs  of  Providence  not 
long  since,  except  that  they  were  lucky  enough 
to  land  the  dead  subject  on  a  hard  turnpike 
road,  and  not  at  the  bottom  of  a  river. 

Take  Brougham's  own  experience  when  yacht- 
inof  amons:  the  Western  Islands  about  the  be- 
ginning  of  this  century :  — 

"  Every  morning  we  shoot  grouse,  hares,  snipes, 
and  deer,  till  five  o'clock,  then  eat  the  most  lux- 
urious dinners  of  game  and  fish,  drinking  claret, 
champagne,  hermitage,  and  hock ;  at  night  we  are 
uniformly  and  universally  dead  (drunk).  Your 
humble  servant  being  in  the  chair  {ex  officio)^ 
does  his  best,  and,  having  a  good  capacity  enough 
for  wine,  does  odd  enough  things.  Yesterday  our 
mess  fell  off ;  Campbell  and  I  and  two  natives  set 
into  it,  and  among  four  had  twelve  j^ort  bottles ; 
the  natives  and  Bob  being  stowed  away,  I  fin- 
ished another  bottle  and  a  half  of  port  with  an 
old  exciseman,  major  of  the  volunteers.  This 
morning  I  found  all  Stornaway  in  full  tongue  at 
my  astonishing  feat;   went   to   the   moors,  walked 


42  PROHIBITORY  LIQUOR  LAW. 

it  off,    and   killed   a   brace   of  liares  at    one    dis- 
charge. 

(Signed)  Henry  Brougham." 

Life  and  Times,  I.,  85. 

In  England,  to-day,  the  nobles,  gentry,  com- 
mercial, professional,  and  upper  classes  gen- 
erally, with  the  better  sort  of  workingmen, 
are  as  temperate  as  any  equal  number  of 
people  in  any  country ;  we  should  ourselves 
think  they  are  more  temperate.  They  use 
liquors  socially ;  but  the  abuse  is  rare.  It  is 
not  decent  now  for  a  gentleman  to  be  drunk, 
—  and  by  gentleman  we  mean  a  dignified 
man ;  a  little  man  or  a  w^orkingman  may  be  a 
man  of  dignity  ;  but  one  hundred  years  since, 
as  Brougham's  letter  to  his  friends  at  home, 
as  well  as  all  literature,  shows,  it  was  a  very 
respectable  thing  for  a  young  man  to  exhibit 
the  powers  of  his  body  in  a  struggle  with  the 
bottle,  or  such  a  number  of  bottles  as  he  was 
equal  to.  Prohibitory  laws  have  not  changed 
these  people;  nor  has  the  feeling  of  total  ab- 
stinence worked  the  change  in  the  habits  and 


TEMPERANCE  AND  ABSTINENCE.      43 

tone  of  the  aristocracy.  The  whole  bearing 
of  society  has  changed ;  and  temperance  in 
every  appetite  has  become  the  practice  as  well 
as  the  aspiration  of  those  persons  whose  social 
position  makes  them  a  law  unto  themselves. 
Compare  the  sovereigns  of  the  Teutonic 
races  two  centuries  ago  with  those  of  this 
time.  In  this  case  kings  are  types  of  their 
times.  New  vices  have  been  developed  in 
modern  times;  but  the  strength  of  many 
old  ones  has  been  subdued.  Material  wealth 
and  comfort  have  increased  so  rapidly,  and 
diffused  themselves  so  much,  that  excess  of 
appetite  is  not  now  the  main  desire  of  man, 
as  it  often  was  in  a  coarser  time.  To  con- 
trol the  appetites  in  every  direction,  to  practise 
a  balanced  temperance,  is  the  aspiration  of 
large  classes  of  society ;  and  in  England  it 
has  become  the  practice  of  those  we  have 
mentioned. 

Arthur  Arnold,  in  the  "Fortnightly,"  shows 
that  England  is  much  more  temperate  than 
she  was  a   century  since :  — 


44  PROHIBITORY  LIQUOR  LAW. 

"  We  do  not,  in  the  reign  of  Queen  Victoria,  con- 
sume one-half  as  much  beer  as  we  did  in  that  of 
Queen  Anne.  The  average  consumption  of  malt 
per  head  of  the  population  was  —  it  will  be  seen 
from  the  following  table,  taken  from  authentic  rec- 
ords —  considerably  more  than  twice  as  great  in  the 
middle  of  the  eighteenth  century  as  in  that  of  the 
nineteenth.     From  1740  to  1790  it  Avas  :  — 


1740  .  .  3.78   1760  . 
1750  .  .  4.85   1770  . 

.  4.29 
.  3.38 

1780 
1790 

.  .  3.94 
.  .  2.57 

"From  1801  to  1871  it  was:  — 

1801  .  .  .  1.20 
1811  .  .  .  1.60 
1821  .  .  .  1.38 
1831  .  .  .  1.63 

1841 
1851 
1861 
1871 

.  . 

1.35 
1.50 
1.61 
1.72 

"John  Barleycorn  is  therefore  far  less  powerful 
in  the  nineteenth  than  .in  the  preceding  century,  — 
and  why?  He  was  partially  upset  by  John  China- 
man. I  think  the  fact  is  indisputable.  In  the  time 
of  the  Tudors  beer  was  drunk  at  every  meal ;  there 
was  a  steady  drinking  from  breakfast  to  supper. 
As  compared  with  that  time,  the  draught  of  malt 
liquor  has  declined  more  than  one-half,  otherwise 
there  could  not  have  been  the  enormous  consump- 
tion of  tea.  The  British  people  now  consume  very 
nearly  four  pounds  of  tea  per  head  per  annum,  — 
an  amount  which  has  steadily  progressed  while  the 
consumption  per  head  of  malt  has  been  all  but  sta- 


TEMPERANCE  AND  ABSTINENCE.      45 

tionaiy.  This  fact  is  interesting,  if  only  because  it 
shows  that  it  is  possible,  by  the  introduction  of  new 
drinks  and  by  legislation,  to  change  the  bibulous 
habits  of  a  people." 

We  beg  our  abstinence  friends  to  consider 
the  signs  of  tlie  times.  Look  at  the  course 
of  New  England  in  regard  to  social  amuse- 
ments. It  is  not  toward  severity  and  asceti- 
cism, but  toward  liberty  and  well-regulated  use 
of  social  pleasures.  This  does  not  indicate  a 
popular  mood  which  will  bear  too  much,  pres- 
sure from  the  ascetic  side.  Least  of  all,  if  we 
are  in  earnest  in  trying  to  restrain  drunken- 
ness, should  the  abstinent  party  repel  and 
censure  that  portion  of  society  which,  while 
using  liquors,  would  have  strong  influence  in 
controlling  their  abuse,  if  that  influence  could 
be  fairly  exerted. 

Many  good  people  choose  their  course  in  this 
matter  not  according  to  their  own  wish  or  con- 
viction, but  according  to  the  supposed  effect 
that  course  may  produce  on  others.  Persons 
who  are  not  convinced  of  the  wroncr  in  drink- 


46  PROHIBITORY  LIQUOR  LAW. 

ing,  yet  avoid  it  -because  of  the  effect  their 
example  may  have  on  other  and  weaker  ones. 
In  so  far  as  this  is  a  genuine  affection  for  ab- 
stinence, it  carries  some  weight  and  has  some 
social  influence ;  but  when  it  is  a  mere  fashion 
of  morals,  adopted  not  for  its  own  excellence 
but  for  its  external  effect,  it  is  either  useless 
or  injurious,  as  we  hope  to  show. 

There  are  two  kinds  of  example  one  nega- 
tive, as  when  we  say  with  Othello,  in  his  pas- 
sionate condemnation  of  Cassio,  "  I'll  make 
thee  an  example;"  or  the  positive  sort,  when  we 
"  propound  to  ourselves  some  exemplar  saint." 
The  abstinent  exemplars  do  not  adopt  either 
kind.  We  form  ourselves  on  a  good  man  be- 
cause we  admire  his  virtues,  and  strive  to 
model  the  same  traits  in  our  own  character. 
Of  course  this  process,  if  successful,  carries  us 
into  the  essence  of  the  saint,  into  the  secret 
of  his  beiuG^.  No  one  ever  created  virtue 
from  the  outside,  or  by  imitating  its  effects  ; 
if  he  prevails  over  it,  he  seizes  it  in  the  germ ; 
and  having  become  fired   by  the    same   causes 


TEMPERANCE  AND  ABSTINENCE.      47 

which  inspired  the  saint,  he  puts  forth  equal 
effects.  This  theory  of  perfunctory  example 
attempts  to  bring  people  to  abstinence,  not 
through  a  serious  conviction  in  those  who 
practise  it,  but  through  the  form  and  external 
custom  which  that  practice  has  put  on.  It 
fails,  and  it  deserves  failure.  The  parsimoni- 
ous, wealthy  parent,  who  limits  his  own  expen- 
diture to  make  a,  model  for  his  son's  imitation, 
generally  comes  out  with  a  spendthrift  heir. 
In  his  heart  the  boy  despises  the  father  because 
he  is  playing  a  part  before  him.  If  the  boy  is 
not  capable  in  his  more  ardent  and  generous 
nature  of  the  same  passion  for  money  which  the 
parent  feels,  he  cannot  cultivate  it  by  imita- 
tion. The  real  object  of  the  father  is  ava- 
rice ;  the  object  he  represents  to  the  boy  is 
prudence  and  economy.  Tlie  boy,  generally 
speaking,  is  not  capable  of  avarice,  and  the 
artificial  pressure  intended  to  create  prudence 
recoils  into  extravagance.  The  theory  fails 
and,  we  say,  deserves  to  fail,  for  it  begins  by 
confounding  definite  and  important  principles. 


48  PROHIBITORY  LIQUOR   LAW. 

Ethical  truths  cannot  be  divided  and  twisted,  and 
spun  into  new  threads  of  truth  by  any  expert 
exercise  of  diplomatic  art.  Men  may  get  prop- 
erty, or  get  on  in  life,  according  to  Mr.  Disraeli, 
and  states  may  be  governed,  by  other  forces  be- 
sides moral  ones.  This  involves  other  questions 
not  properly  belonging  here.  But  in  moral  in- 
fluences we  have  a  new  and  simple  creation  in 
every  act.  The  individual  takes  close  hold  of 
his  neighbor,  and  there  is  hand-to-hand  work. 
The  highest  and  lowest  intelligences  are  equal 
here.  Take  up  the  most  ignorant  rustic,  and 
he  knows  whether  you  mean  just  what  the 
words  you  tell  him  would  indicate.  If  de- 
ceived by  circumstance  the  first  time,  he  will 
detect  you  in  the  second  instance.  Every  man 
is  his  own  mirror,  and  this  revealing  of  the 
individual  is  all  that  can  be  done  in  example. 
If  you  reveal  something  else,  and  send  forth  an 
image  which  does  not  proceed  from  your  cen- 
tral and  deepest  conviction,  then  you  create  a 
bad  example,  though  j^our  intention  may  be 
good  apparently.     You  can  sustain  but  one  ideal 


TEMPERANCE  AND  ABSTINENCE,      49 

at  a  time,  and  are  fortunate  if  you  have  moral 
energy  enough  for  that.  It  must  be  the  best 
you  have ;  and  the  best  you  can  do  for  another 
is  the  very  best  you  can  do  for  yourself.  No 
constructive  ideal,  made  from  several  nicely- 
balanced  motives,  will  affect^  your  neighbor,  or, 
if  it  affects  him  at  all,  the  effect  will  be  bad. 
Bear  in  mind  this  is  not  hypocrisy,  it  is  not  a 
deception  of  others,  but  the  much  more  subtle 
deceiving  of  ourselves.  The  cynic  Rochefou- 
cauld said  :  "  It  is  as  easy  to  deceive  one's  self 
without  perceiving  it,  as  i€  is  difficult  to  deceive 
others  without  their  perceiving  it." 

If  a  man  looks  over  his  consciousness,  and 
finds  that  he  has  no  fixed  principles  of  absti- 
nence, then,  looking  to  the  interests  of  society, 
he  had  better  practise  temperance,  and  leave 
abstinence  to  those  persons  who  believe  in  it, 
and  would  die  for  it,  if  necessary.  That  is  the 
best  example  which  exhibits  whatever  he  would 
sustain  with  all  his  might.  In  actual  fact,  a  man 
says  feebly :  "  This  is  not  wrong,  but  I  may  be 
misunderstood,  and  it  is  better  for  me  to  deny 

3  D 


5'0  PROHIBITORY  LIQUOR  LAW. 

myself  than  to  make  others  offend."  The  mis- 
understanding begins  with  himself,  and  grows 
larsrer  the  farther  it  extends.  The  motive  be- 
hind  the  self-denial  is  not  the  motive  which 
impelled  St.  Paul,  but  is  the  nerveless  lack  of 
courage  which  will  not  let  a  man  work  out  his 
own  convictions.  It  is  this  sort  of  example 
w^hich  grinds  the  individuality  out  of  us.  It 
examples  the  aquiline  nose  into  a  Grecian,  the 
Roman  into  a  pug,  and  soon  would  leave  not  a 
nose  on  our  socially  smooth  faces. 

In  another  view  of  this  subject,  example  de- 
feats itself.  Truth-speaking  is  a  good  example, 
but  any  thing  spoken  for  an  example  is  not  the 
truth.  Truth  is  imperial,  and  compels  the  in- 
dividual to  follow  her  behest  with  no  reference 
to  consequence  or  the  needs  of  any  other  indi- 
vidual. In  the  same  manner,  good  morals  are 
impelled  by  the  good  sense  and  wisdom  of  the 
individual  working  his  whole  nature  from  its 
own  centre :  else  the  sense  becomes  folly,  and 
the  morals  become  false  and  vicious  in  their 
effects.     If  we  are  told,  this  is  hard  for  the  weak 


TEMPERANCE  AND  ABSTINENCE.      51 

ones  who  follow  examples  mechanically,  and,  by 
exceeding  the  example  of  temperance,  fall  into 
drunkenness,  we  answer,  that  we  cannot  help  it. 
Yon  cannot  aid  a  fool  by  taking  up  folly,  or  by 
denying  an  appetite  in  order  to  keep  him  from 
abusing  that  appetite.  If  the  appetite  is  un- 
lawful in  itself,  that  is  another  question,  which 
this  argument  does  not  include.  South  says : 
"  One  thing  receives  another,  not  according  to 
the  full  latitude  of  the  object,  but  according  to 
the  scanty  model  of  its  own  capacity."  Exces- 
sive drinking,  from  one  point  of  view,  is  an 
insanity  of  the  appetite.  To  treat  the  appetites 
of  all  individuals  as  if  they  were  insane,  brings 
on  the  same  confusion  that  we  should  have  if 
we  adapted  our  common  living  to  the  needs  of 
persons  mentally  insane.  We  should  then  make 
ourselves  crazy,  without  helping  the  few  insane 
who  require  a  special  treatment. 

All  this  confusion  arises  from  the  effort  to 
put  the  test  of  our  moral  conduct  in  the  wrong 
place. 

"  As  a  true  balance  is  neither  set  right  by  a  true 


52  PROHIBITORY  LIQUOR  LAW. 

one,  nor  judged  by  a  false  one;  so  likewise  a  just 
jierson  has  neither  to  be  set  right  by  just  persons,  nor 
to  be  judged  by  unjust  ones."  —  JEpictetus  (Higgin- 
son's  Trans.,  j^.  414). 

Our  example  is  not  the  main  test  and  stand- 
ard of  our  lives:  it  is  a  mere  index,  which  shows 
what  our  living  is.  It  must  be  true,  so  far 
as  it  goes ;  but  the  proper  interpretation  of  the 
index  is  not  a  social  matter  for  the  public  ;  it  is 
an  individual  matter  for  ourselves.  The  test  — 
the  great  plummet  and  plumb-line  of  our  living 
—  is  in  our  interior  relation  with  God ;  not 
conscience  alone,  but  all  the  faculties  of  which 
conscience  is  the  expositor.  When  this  great 
test  is  straight  and  satisfied,  then  example  will 
take  care  of  itself,  and  other  persons  Avill  receive 
no  harm  from  it.  For  even  if  the  example  be 
one  which  others  ought  not  to  follow,  it  will  be 
thoroughly  sincere,  and  something  which  carries 
conviction  or  repulsion  with  it.  Then  one  with 
the  meanest  comprehension  can  follow,  or  take 
warning  and  avoid ;  for  he  will  understand,  as 
we  instanced  in  the  case  of  our  rustic,  who 
knows  our  truth  or  falsehood  at  once. 


TEMPERANCE  AND  ABSTINENCE,      53 

Physical  illustrations  never  wholly  fit,  but 
there  is  a  close  analogy  to  the  sailing  of  a  ship 
in  this  conduct  of  the  individual.  In  steering  a 
ship,  there  are  three  main  elements,  —  the  rud- 
der, the  compass,  and  the  course  chosen  or  indi- 
cated. The  winds  and  resisting  currents  enter 
also,  but  in  this  connection  we  treat  them  as 
a  part  of  the  rudder  or  steering  process.  The 
captain  compares  information,  adjusts  observa- 
tions, and  cultivates  good  fellowship  with  other 
vessels ;  but  he  never  changes  his  own  course  a 
point  on  account  of  others.  If  they  need  aid, 
he  assists,  but  never  links  his  own  craft  to  one 
water-logged,  nor  carries  more  or  less  sail  for 
the  benefit  of  another.  The  moment  he  should 
divert  his  course  for  the  bearing  it  may  have  on 
another,  he  would  become  a  silly  man  as  well  as 
a  poor  navigator.  To  do  otherwise  would  be 
putting  his  own  compass,  or  course  of  sailing, 
as  it  might  be,  on  board  another  vessel.  The 
individual  sails  by  his  conscience,  which  is  the 
best  index  of  right  and  wrong,  and  quickest 
brings  the  ship  to  her  due  bearings.      But  his 


64  PROHIBITORY  LIQUOR  LAW. 

course  is  adjusted  through  other  faculties,  as 
we  said  before,  forming  a  great  ocean  in  the 
soul  of  mankind,  through  which  from  day  to 
day  the  individual  works  his  way.  Justice, 
reverence,  truth,  fortitude,  patience,  temper- 
ance, and  a  hundred  other  moral  virtues,  enter 
into  the  course  of  living,  and  influence  it  now 
this  way  and  now  that.  The  man  gathers  in- 
formation wherever  he  can,  takes  his  observa- 
tions warily  and  sincerely,  but  he  must  take 
them  for  himself,  and  adjust  his  own  course  by 
the  compass  of  his  conscience  and  the  great  test 
of  righteous  living,  which  brings  him  near,  and 
keeps  him  in  harmony  with  God,  the  Father  of 
his  soul.  When  he  puts  this  test,  this  plummet 
of  his  own  righteousness,  into  somebody  else's 
ship,  into  an  external  form  of  example,  then  he 
has  lost  his  own  positive  course  in  life  without 
aiding  or  changing  the  course  of  others. 

It  was  necessary  to  make  this  apparent  di- 
gression, for  the  principle  lies  near  the  core  of 
our  main  topic.  Temperance  or  abstinence  in 
respect  to  hquors  are  principles  strictly  within 


TEMPERANCE  AND  ABSTINENCE.      55 

the  domain  of  each  individual.  Each  man  has 
a  right  —  morally,  so  long  as  no  law  of  God  is 
broken,  which  we  show  in  another  chapter ; 
socially,  as  we  have  proved  in  the  foregoing  — 
to  choose  for  himself  whether  he  will  use  or 
refuse  liquors.  The  abuse  of  liquors  at  once 
carries  the  individual  beyond  himself,  and  cre- 
ates the  right  of  social  interference.  Conse- 
quently, the  use  or  non-use  of  liquors  should 
be  equal  before  the  law ;  and  there  is  no  just 
reason  for  interfering  by  legislation  or  legal  pro- 
cess with  either  practice. 


6Q  PROHIBITORY  LIQUOR  LAW. 


THE   WORKING   OF   PROHIBITION. 


^r^HE  abstinence  reformers  sincerely  believed 
that  the  law  only  lacked  power ;  if  they 
could  have  greater  force  at  their  command,  then 
they  thought  they  could  abohsh  the  traffic  in 
liquors.  This  feeling  was  general  among  them, 
and  it  was  not  a  new  discovery,  but  a  practical 
application  of  this  supposed  principle,  which 
Neal  Dow  accomplished  in  the  famous  Maine 
Law.  This  was  introduced  shortly  into  other 
States,  and  became  the  political  shibboleth  of 
the  abstinence  party.  It  proceeded  against  the 
property  as  well  as  the  offender  under  the  law, 
and  gave  stringent  power  of  seizure.  This 
statute  was  enacted  in  Rhode  Island  in  1852, 
and  it  is  interesting  to  review  some  of  the  argu- 
ments which  were  used  in  obtaining  it,  because 
they  are  the  same  in  kind  which  prevail  with 
the  whole  party. 


THE  WORKIIVG  OF  PROHIBITION.       57 

Amos  C.  Barstow  led  tlie  reformers,  and  we 
cite  from  his  speech  in  the  Rhode  Island  House 
of  Representatives,  as  reported  in  the  "  Provi- 
dence Journal  "  :  — 

"  We  are  acting  on  a  petition  of  25,000  persons, 
of  whom  11,500  are  adult  male  citizens;  they  em- 
brace a  large  part  of  the  moral  worth  of  the  State. 
.  .  .  These  petitions  bear  the  names  of  the  learned 
and  excellent  President  of  your  University,  of 
ministers  of  religion,  of  your  physicians,  merchants. 
.  .  .  They  represent  the  industry  and  the  virtue  of 
the  State.  I  beg  gentlemen  who  are  preparing 
amendments  to  this  bill  to  mark  the  prayer  of 
these  petitions.  They  want  a  law  to  suppress  the 
rum  traffic,  —  not  to  regulate.,  but  to  suppress. 
They  ask  for  nothing  more,  and  will  be  content 
with  nothing  less.  ...  I  charge  the  evils  of  intem- 
perance upon  this  traffic,  —  and  for  this  reason,  the 
appetite  is  not  natural  but  acquired^  and  acquired 
through  the  temptations  presented  by  this  traffic. 
The  only  way,  therefore,  to  stop  the  demand  is  to 
cut  off  the  supply. 

'•  Our  present  laws  do  not,  and  cannot,  suppress 
it,  and  for  these  reasons  :  — 

"  1st.  It  requires  more  evidence  to  convict  a  man 
under  them  than  would  be  sufficient  to  hang  him. 

"  2d.  The  penalties  are  inadequate.  So  true  is  this, 
3* 


58  PROHIBITORY  LIQUOR  LAW, 

that,  in  my  opinion,  the  law  is  hardly  worth  enforc- 
ing. It  only  serves,  when  enforced,  to  fret  and 
goad  the  rumseller,  while  it  allows  the  traffic  to  go 
on.  He  can  pay  its  2)enalties,  and  grow  rich  in  spite 
of  it. 

"  3d.  It  allows  towns  to  license  the  traffic.  The 
State  thus,  by  giving  this  liberty,  sanctions  the 
traffic,  and  becomes  a  party  to-  the  crime.  .  .  . 

"It  is  hoped  that  these  (*.e.,  provisions  of  new 
statute)  and  other  stringent  provisions  will  secure  the 
desired  end,  —  will  suppress  this  traffic.  The  suc- 
cess which  has  thus  far  attended  the  enaction  of  the 
law  in  Maine  warrants  this  hope." 

After  twenty-two  years'  experience  of  this 
statute,  during  which  time  it  has  either  slept 
on  the  statute-book  or  been  enforced  in  feverish 
spells  of  energy,  we  are  still  hearing  the  same 
arguments  and  the  same  promises,  with  the 
demand  for  more  poAver  in  the  laAV.  The  only 
new  principle  introduced  into  the  prohibitory- 
statutes  of  Rhode  Island  or  Massachusetts  has 
been  in  the  appointment  of  a  force  of  state 
constables.  These  officers,  it  was  claimed,  hav- 
ing no  local  associations,  would  enforce  the  law 
more  strictly. 


THE  WORKING  OF  PROHIBITION.       59 

The  reader  will  observe  the  principles  which 
run  through  this  argument.  The  state  must 
take  control  of  the  appetites  of  its  citizens  just 
as  a  mother  directs  an  infant.  Then,  these 
appetites  are  not  in  the  individual,  but  "  ac- 
quired'''' through  the  agency  of  the  liquor-seller, 
and  the  state  must  suppress  the  traffic  in  order 
to  cut  off  the  appetite.  Many  promises  made 
by  the  abstinence  advocates  were  even  stronger 
than  those  we  have  cited,  which  were  tempered 
by  the  opposition  of  debate.  There  was  a 
serious  conviction  among  the  majority  that  a 
new  era  in  the  temperance  reformation  had 
arrived,  and  that  well-disposed  persons,  what- 
ever their  private  desires,  should  lend  a  hand 
to  bring  in  the  promised  millennium.  The  ''  in- 
dustry and  virtue"  of  the  Maine  Law  peo2:»le 
was  tacitly  backed  by  the  larger  force  of 
"  world's  people,"  who,  though  not  allowed  the 
sanctimonious  crown  of  virtue,  yet  try  to  do 
their  duty  toward  their  neighbors  and  the  state. 
Every  assistance  was  rendered  to  the  abstinence 
managers  after  the  law  was  enacted,  and  many 


60  PROHIBITORY  LIQUOR  LAW. 

doubtful  ones  even  voted  for  it,  that  the  princi- 
ple might  be  tried.  Mr.  Barstow,  the  ablest 
executive  in  the  abstinence  party,  was  elected 
mayor  of  the  city  of  Providence,  and  a  com- 
plete staff  of  officers  was  made  out,  who  should 
in  principle  sympathize  with  the  statute.  The 
"  world's  people  "  laid  in  demijohns  of  spirits 
and  cases  of  wine,  until  every  other  house  was 
not  only  a  castle,  but  a  castle  supplied  against 
a  siege. 

Tiie  results  did  not  justify  the  ample  prepara- 
tion made  for  the  law.  Illicit  traffic  among  the 
lower  classes  began  at  once,  and  defied  the  best 
exertions  of  the  officers.  Clubs  were  formed 
among  well-to-do  persons,  and  the  drinking  of 
liquors  kept  on.  All  who  have  observed  these 
clubbing  operations  to  avoid  a  law  —  abstinence 
men  as  well  as  temperates  —  agree  that  they 
are  among  the  worst  evils  society  ever  brought 
in  upon  itself.  We  give  the  testimony  of  a 
thoroughly  disinterested  gentleman  who  is  used 
to  the  observation  of  facts,  and  knows  how  to 
reduce  them  to  a  scientific  verity. 


THE  WORKING  OF  PROHIBITION.       Gl 

"Providence,  Oct  21,  1874. 
"  Wm,  B.  Weeden,  Esq. : 

"My  Dear  Sir, — In  accordance  with  your  re- 
quest, I  send  you  in  writing  the  substance  of  the 
statement  made  by  me  orally  to  you  a  few  days  ago. 

"During  the  years  1854-5-6,  I  was  living  in  one 
of  the  principal  cities  of  Connecticut,  and  was  very 
favorably  situated  to  observe  the  workings  of  the 
*  Maine  Law,'  when  first  passed  and  enforced  in 
that  State.  The  evils  resulting  from  it  were  so  seri- 
ous, that  those  of  its  most  ardent  supporters  who 
were  really  in  a  position  to  see  and  feel  the  real 
state  of  the  case  were  quite  willing  to  allow  the  law 
—  iyi  that  city  at  least  —  to  become  a  dead  letter. 

"  On  one  occasion,  I  heard  the  prosecuting  attor- 
ney (who  had  been  very  earnest  in  working  to 
secure  the  passage  of  the  law)  state  the  following 
facts  in  private  conversation  :  — 

" '  No  sooner  were  the  dram-shops  closed  than  the 
regular  tipplers,  uniting,  formed  various  "  clubs  "  or 
"  societies  "  ostensibly  for  social  or  literary  purposes. 
Rooms  were  hired,  fitted  up  in  good  style,  and  stocked 
with  an  abundance  of  the  "  ardent,"  purchased  at 
wholesale  prices  in  New  York.  The  rooms,  open  at 
all  times  to  members,  became  their  favorite  resort  at 
night,  and  gambling  soon  became  a  marked  feature 
of  their  festive  gatherings.  Not  satisfied  with  fleec- 
ing one  another,  they  soon  began  to  draw  in  fresh 
.victims, — the   more   innocent   the  better.      Young 


62  PROHIBITORY  LIQUOR  LAW. 

men,  who  would  have  turned  with  disgust  from  a 
dram-shop,  were  easily  enticed  into  a  "club-room," 
and  those  who  would  never  have  consented  to  play 
at  cards  in  a  public  resort  were  more  ready  to  join 
in  a  game,  "  among  friends,  you  know."  The  infec- 
tion quietly  spread,  especially  among  employes  of 
the  liigher  class,  —  clerks  and  others  holding  posi- 
tions of  trust,  who  had  been  considered  above  all 
suspicion.  At  length  the  employers  became  aware 
that  things  were  going  wrong,  and  soon  discov- 
ered the  source  of  the  evil.  Urgent  appeals  were 
made  to  the  prosecuting  attorney  by  many  of  the 
best  citizens  —  most  of  whom  had  been  zealous  and 
influential  friends  of  tlie  Maine  Law —  to  put  an  end 
to  the  pressure  which  gave  these  "  clubs  "  tlieir  being 
and  their  vitality.  The  law  soon  ceased  to  be  en- 
forced, but  its  evil  effects  long  survived,  as  the 
"  clubs,"  once  organized,  maintained  themselves  for 
some  time.  Many  a  young  man,  armed  at  all  points 
against  open  temj^tations,  succumbed  to  the  insidi- 
ous lure  of  a  "  secret  society,"  with  its  promise  of  a 
social  circle  of  "  good  fellows."  That  these  "  clubs  " 
were  really  the  result  of  the  law,  and  that  they  owed 
their  vitality  in  great  measure  to  its  enforcement,  is, 
I  think,  capable  of  distinct  proof  ' " 

The  experience  of  clubs  of  this  sort  has  been 
equalty  bad  everywhere,  though  they  have  not 


THE  WORKING  OF  PROHIBITION,       G3 

all  tended  so  miicli  toward  gambling.  A  disin- 
terested witness,  who  bad  an  intimate  knowledge 
of  tbe  habits  of  the  Avorking  people  in  Connec- 
ticut at  this  time,  assured  the  writer  that  many 
persons  and  families  bought  supplies  of  whiskey 
from  carts  which  came  in  the  night,  who  hardly 
drank  at  all  in  ordinary  seasons.  The  feeling 
was  rife  among  them  that  they  were  cut  off 
from  a  right,  and  must  make  it  up  from  the  first 
illicit  opportunity  afforded. 

The  writer  was  then  a  clerk,  and  often  at 
work  in  different  warehouses  with  the  wharf 
laborers.  When  the  enforcement  of  the  law  was 
most  rigid,  and  a  stranger  might  suppose  there 
was  not  even  a  dew-drop  of  whiskey  accessible, 
these  men  would  leave  their  work,  one  at  a 
time,  dive  into  some  cavern  or  burrow,  and 
return  in  five  minutes,  their  lips  wet  with  the 
hasty  dram.  These  men  had  as  little  power  to 
evade  tlie  law  as  any  class  could  have.  It  is 
fair  to  infer  that  others  of  the  same  Idnd  and 
other  classes  attained  the  same  privileges  else- 
where.    All  external  evidence  showed  that  Mr. 


64  PROHIBITORY  LIQUOR  LAW. 

Barstow's  argument  should  be  reversed.  Instead 
of  the  supply  of  liquor  bemg  the  cause  of  an 
appetite,  facts  indicated  that  the  appetite  com- 
manded its  supply  in  spite  of  all  the  power  the 
city  of  Providence  could  bring  to  suppress  it. 

"  As  they  (statesmen)  descend  from  the  state  to  a 
province,  from  a  jn'ovince  to  a  parish,  and  from  a 
l^arish  to  a  private  house,  they  go  on  accelerated  in 
their  fall.  They  ought  to  know  the  different  depart- 
ments of  things,  —  what  belongs  to  laws,  and  what 
manners  alone  can  regulate.  To  these,  great  politi- 
cians may  give  a  leaning,  but  they  cannot  give  a 
law."  — Burke,  V.  210  (Rivingtons). 

The  results  among  the  better  conditioned  peo- 
ple were  patent  to  every  one.  The  abstinence 
administration  was  turned  out  as  a  failure,  and 
matters  drifted  along  in  the  old  way.  It  might 
be  expected  that  the  dangerous  classes  —  those 
who  are  directly  amenable  to  the  law,  through 
lack  of  character  and  settled  place  in  life  — 
might  be  controlled  more  surely  than  the 
wealthy,  or  those  humble  laborers  whom  we 
have  instanced  above.  That  the  system  failed 
here  also,  the  testimony  of  Dr.  Wayland  shows. 


THE  WORKING  OF  PROHIBITION.       (S^ 

He  became  an  abstinence  man,  on  account  of 
the  weight  his  character  and  pubHc  position 
gave  to  his  example.  He  afterward  lent  his 
influence  to  prohibition,  in  the  hope  that  it 
might  prevail ;  he  was  a  petitioner  for  the  law, 
as  we  have  seen,  though  he  always  doubted  its 
final  success.  The  writer  is  assured  of  this  by 
those  who  knew  him  well. 

The  report  of  the  State  Prison  Inspectors, 
drawn  in  the  handwriting  of  Dr.  Wayland, — 
he  being  chairman,  —  dated  Jan.  14,  1853,  con- 
tains the  following :  — 

"It  will  be  seen,  from  the  above  statistics,  that 
the  greater  part  of  the  expense  to  which  the  State  is 
at  present  subjected  in  maintaining  the  prison,  arises 
from  the  county  jail.  If  this  branch  of  the  prison 
could  be  made  sufficiently  productive,  the  condition 
of  the  establishment  would  be  much  more  satisfac- 
tory. The  reasons  why  the  earnings  of  the  county 
jail  are  so  small  are  twofold^  In  the  first  place, 
those  persons  who  are  only  detained  for  trial  are 
not  subjected  to  labor,  and  lience  there  are  no 
means  for  reducing  the  expenses  of  their  main- 
tenance ;  and,  secondly,  the  sentences  to  the  county 
jail  are,  in  many  case^i,  so  short,  that  no  time  is 


^Q  PROHIBITORY  LIQUOR  LAW, 

allowed  for  teaching  these  convicts  any  i:)rofitable 
labor. 

"  The  bad  effect  of  these  short  sentences  is  not 
confined  to  its  expense  of  maintenance.  It  is  thus 
rendered  impossible  to  teach  the  convicts  habits  of 
industry,  or  to  overcome  habits  of  intemperance; 
and,  still  more,  by  returning  the  same  convicts  fre- 
quently to  prison,  there  is  entailed  upon  the  State 
a  large  expense  in  the  shape  of  fees  of  arrest,  com- 
nfiitment,  and  trial."  (The  state  had  just  added  a 
wing  to  the  state  prison,  containing  eighty-eight 
cells.  The  average  number  of  prisoners  was  then 
one  hundred  and  fifteen,  —  forty-seven  being  state 
and  sixty-eight  jail  prisoners.) 

"  The  Inspectors  respectfully  request  that  any 
part  of  the  State  Prison  may  be  used  as  a  county 
jail  at  the  pleasure  of  the  Board."  —  Acts  and  Re- 
soliics.    Rhode  Island,  Jan.,  1853,  p.  332. 

On  the  31st  of  December,  1855,  about  three 
and  a  half  years  after  the  Maine  Law  went  into 
operation,  the  State  Prison  Inspectors  made 
another  report,  which  also  bears  the  name  of 
Dr.  Wayland.     We  extract :  — 

"By  this  mode  of  exercising  criminal  jurispru- 
dence, no  single  object  is  attained;  nothing  is  done 
either  to  diminish  the  amount  of  crime  or  to  im- 


THE  WORKING  OF  PROHIBITION.       67 

prove  the  individual  criminal.  The  result  may 
therefore  be  set  down  as  nothing.  .  .  .  This  total 
|G,306.49  is  the  cost  in  Providence  county  for  in- 
toxication, which  is  taken  from  the  pockets  of  the 
tax-payers.  From  these  statistics  it  would  seem, 
then,  that  the  amount  paid  by  the  county  of  Provi- 
dence alone  for  imprisonment  for  intoxication,  if 
divided  among  the  several  towns  of  the  State, 
w^ould  furnish  each  one  with  about  $200  for  the 
purchase  of  a  library.  As  at  present  expended,  it 
is  impossible  to  discover  that  it  attains  a  single  val- 
uable result.  .  .  .  The  last  report  for  the  Albany 
Penitentiary  has  been  received.  The  experience  of 
that  institution  has  been  in  every  respect  so  nearly 
identical  with  our  own,  that  we  beg  the  attention 
of  the  Assembly  to  the  following  extract :  — 

"  '  Albany  Penitentiary  Report.  —  Since  the  en- 
actment of  what  is  termed  the  "Prohibitory  Law,"  a 
new  crime,  denominated  "public  intoxication,"  punish- 
able by  ten  days'  imprisonment,  has  been  instituted,  the 
practical  effect  of  which  has  been  detrimental  to  the 
pecuniary  interests  of  the  j^enitentiary.  With  the  law 
itself  the  Inspectors  have  nothing  to  do,  whatever  their 
individual  opinion  of  its  merits  or  demerits  may  be,  .  .  . 
If  our  law-makers  had  intended  to  punish  the  tax-j^ayer 
instead  of  the  drunkard,  or,  rather,  if  they  had  meant  to 
inflict  a  slight  punishment  on  the  latter  at  the  expense 
of  the  former  class,  the  object  could  not  have  been  more 
effectually  accomj^lished.  Neither  is  its  moral  influence 
in  any  degree  salutary.     In  the  opinion  of  the  Inspect- 


68  PROHIBITORY  LIQUOR  LAW. 

ors,  the  statute  referred  to  should  be  so  amended  as  to 
lengthen  the  term  of  imprisonment,  or  things  in  this 
respect  restored  to  their  original  state,  and  offenders 
treated  as  they  were  before  the  law  existed.' 

"Impressed  with  these  convictions,  the  Board  of 
Inspectors  ask  leave  to  commend  the  laws  relating 
to  imprisonment  in  the  jail  to  the  attention  of  the 
General  Assembly,  fully  convinced  that  they  w^ll, 
in  their  wisdom,  originate  such  enactments  as  will 
more  effectually  and  economically  accomplish  the 
object  of  criminal  jurisprudence."  —  Acts  and  He- 
solves.     Rhode  Island  Assembly,  Jan.,  1856. 

A  nuisance  act  was  passed  in  1856,  which 
supplemented  the  original  law,  and  corrected 
some  of  its  details  which  had  been  damaged 
in  the  courts.  But  the  practical  results,  after 
all  the  legislative  tinkering,  were  no  better  than 
the  old  system  before  the  Maine  Law  began. 
Mr,  Barstow's  description  of  the  old  law — ''it 
only  serves,  when  enforced,  to  fret  and  goad  the 
rumseller  while  it  allows  the  traffic  to  go  on ; 
he  can  pay  its  penalties  and  grow  rich  in  spite 
of  it "  —  applies  equally  well  to  the  new  or 
Maine  Law  system.  The  liquor-dealers  in  Provi- 
dence have  acquired  large  fortunes,  built  solid 


THE  WORKING  OF  PROHIBITIOX.       69 

blocks  of  stores,  and  in  every  way  evinced  a 
prosperous  traffic.  The  extra  pressure  of  the 
law  has  increased  their  margin  of  profit.  It 
might  be  said  this  increased  price  was  an  ad- 
vantage to  the  drinker,  in  that  it  checks  con- 
sumption ;  which  would  be  true,  were  it  not  that 
the  quality  of  the  Article  sold  has  deteriorated 
so  much  from  the  same  cause  that  the  injury 
do  AC  the  drinker  is  aggravated  in  a  double  ratio. 

The  writer  is  assured,  by  a  competent  eye- 
witness, one  whose  testimony  would  be  weighty 
in  any  affair,  that  the  result  was  substantially 
the  same  in  Maine.  Though  the  law  main- 
tained itself  in  administration,  yet  its  fruits 
were  not  satisfactory.  "  After  the  first  two 
years  the  extreme  measures  disgusted  all  mod- 
erate temperance  men." 

The  writer  supposed  —  every  one  supposes  — 
that  it  would  be  easy  to  set  forth  these  facts 
of  the  working  of  prohibition  and  of  the  hab- 
its  of  the  people  in  their  use  of  liquors  in  sat- 
isfactory statistics  which  should  indicate  the 
consumption  of  liquors.     Wherever  we  travel, 


70  PROHIBITORY  LIQUOR  LAW. 

whether  in  Maine,  Massachusetts,  New  York, 
or  Ohio,  Ave  see  about  the  same  evidences  of 
hquors  and  their  consumption.  Bar-rooms,  sa- 
loons, and  retail  shops  prevail  almost  equally. 
In  large  places,  when  new  streets  are  opened, 
we  see  about  the  same  preparation  for  liquor- 
selling,  whether  the  location  be  in  Massachu- 
setts or  New  York.  A  village  may  show  signs 
of  an  especial  abstinence  from  liquors,  but  the 
next  village  will  give  equal  evidence  of  a  dif- 
ferent habit,  while  both  live  under  the  same 
prohibitory  law.  States  having  different  sys- 
tems, whether  of  license  or  prohibition,  show 
no  marked  difference  in  their  drinking  habits. 
Go  into  their  homes,  and  you  find  abstinence 
prevailing  among  the  ascetic  temperaments,  and 
about  the  same  tendency  toward  drinking  in 
different  places  among  those  who  do  not  agree 
with  the  ascetics.  It  is  evident,  at  a  glance, 
that  the  law  prevailing  does  not  essentially 
change  the  habits  of  the  people,  though  they 
may  differ  in  degree.  A  notable  proof  of  this 
fact  from  the  negative  side  is  afforded  in  Vine- 


THE  WORKING  OF  PROHIBITION.       71 

land,  New  Jersey.  Here  a  large  village  lias 
grown  up  under  a  prohibitory  system  almost 
absolute.  The  reason  why  the  system  has  suc- 
ceeded is  because  the  people  are  different  from 
any  common  toAvn  organized  by  the  usual  laws 
of  settlement.  The  place  was  exceptionally 
conceived,  exceptionally  settled,  and  is  excep- 
tionally governed.  It  drew  together  a  group 
of  citizens  tired  of  other  places  and  desirous 
of  new  ways  of  living.  The  administration 
which  may  succeed  there,  is,  in  the  nature  of 
the  case,  unfit  for  the  country  at  large.  There 
could  not  be  a  whole  country  of  Vinelands 
unless  there  were  more  worlds  to  select  from. 
Whether  the  whole  country  would  be  better 
if  it  were  all  Vineland,  we  are  not  discussing ; 
it  would  require  at  least  three  generations  of 
people  exceptionally  selected  and  reared  to 
prove  the  superiority  of  the  exceptional  sys- 
tem ;  meanwhile,  it  is  an  open  question.  Laws 
are  made  for  the  whole  people,  and  not  for  any 
fragment,  whether  that  exceptional  portion  be 
better  or  worse  than  the  majority. 


72  PROHIBITORY  LIQUOR  LAW. 

Determined  to  prove  these  plain  facts,  the 
writer  applied  to  one  of  the  best  statisticians 
in  Massac hiiijetts,  and  drew  out  the  following 
reply:  — 

"I  profess  to  have  the  means  of  getting  at  some 
statistics;  but  a  more  preposterous  request  than 
that  you  sent  to  me  yesterday  I  never  knew.     Dr. 

might  tell  you  to  a  pint  how  much  liquor  was 

used  in  the  State  in  any  given  period,  bat  he  would 
get  at  it  in  tlie  same  way  the  boy  said  the  astron- 
omers ascertained  the  distance  to  the  sun,  —  guess 
at  half  and  multiply  it  by  two. 

"  No,  my  dear  Sir,  there  is  no  way  you  can  find 
out  any  thing  of  the  kind  in  any  trustworthy  way. 
Some  of  the  wholesale  liquor  dealers  may  have 
aj^pTOximate  statistics  which  woiiid  be  useful  for 
comparison  of  one  year  with  another,  on  the  prin- 
ciple that  the  blunders  will  balance,  but  not  other- 
wise,—  nothing  absolute.  You  might  reckon  that 
all  the  liquor  that  comes  into  the  State  is  used,  as 
there  is  a  prohibitory  law  in  Maine,  and  no  liquor  ib 
sold  or  used  in  that  State. 

"  Don't  be  discouraged  by  my  inability  to  answer 
this  question.     Try  me  again.  —  Sincerely  yours." 

The  Writer  then  thought  a  search  might  be 
made  through  the  records  of  the  common  car- 


THE  WORKING  OF  PROHIBITION.       73 

riers,  on  the  great  lines  at  least,  which  should 
show  the  amount  of  liquors  carried  into  Boston, 
for  a  term  of  years,  and  thus  give  us  on  paper 
the  relative  consumption  from  season  to  season. 
Such  a  statement  would  be  interesting  to  all 
who  discuss  this  vexed  question,  whatever  their 
view  of  it.  A  gentleman  much  interested  in 
these  issues,  and  so  situated  as  to  command  all 
these  sources  of  information,  replied  as  fol- 
lows :  "  I  have  enquired  both  at  the  Provi- 
dence offices  and  at  the  Boston  and  Albany, 
to  see  if  any  such  statistics  as  you  desire  are 
accessible ;  but  I  find  nothing  less  than  a 
most  disproportionate  amount  of  labor  and 
research  would  accomplish  even  an  approxima- 
tion to  what  you  require,  and  this  would  be 
open  to  criticism."  We  have  been  thus  par- 
ticular in  detailing  this  experience,  because  it 
shows  the  method  by  which  we  have  labored 
in  this  work.  There  is  not  a  single  statement 
made  in  this  whole  essay  which  is  not  the  result 
of  conference  with  persons  who  know  whereof 


74  PROHIBITORY  LIQUOR  LAW. 

they  speak.  The  writer  has  no  connection  with 
political  party  or  politicians,  and  no  connection 
with  the  press.  This  freedom  from  the  powers 
that  be,  in  these  regions  of  sumptuary  law,  has 
oj^ened  the  mouths  of  many  officers  who  could 
not  speak  in  a  report,  in  a  political  convention, 
or  through  the  medium  of  the  newspaper  re- 
porter. Many  statements  we  make  guardedly, 
for  the  purpose  of  keeping  the  personality  of 
the  witnesses  secret.  We  have  been  received 
in  the  fullest  and  freest  confidence,  and  what- 
ever the  reader  may  think  of  our  argument,  he 
may  rely  on  the  fact  that  the  writer  receives 
and  gives  out  no  testimony  which  he  would  not 
apply  in  his  own  affairs  or  his  own  family. 

The  present  prohibitory  law  in  Massachu- 
setts was  enacted  in  18G9.  In  principle  it  is 
like  all  these  statutes,  and  like  the  original 
Maine  Law;  they  only  differ  in  details. 


THE   WORKING  OF  PROHIBITION,       75 


THE    STATE    APPOINTS    A    COMMISSIONER    OR    STATE 
AGENT. 

CiiAP.  415 — Sec.  17.^  "The  selectmen  of  every 
town  containing  less  than  5,000  inhabitants  may, 
the  mayor  and  aldermen  of  every  city  or  selectmen 
of  every  town  containing  more  than  5,000  inhab- 
itants shall,  ai:)point  one  or  more  suitable  persons  as 
agents  of  such  place  to  purchase  and  sell  at  some 
convenient  places  therein,  spirituous  or  intoxi- 
cating liquors  to  be  used  in  the  arts,  or  for 
medicinal,  chemical,  and  mechanical  purposes,  and 
no  other.  .  .  ." 

Sec.  24.  "Whoever,  purchasing  spirituous  or 
intoxicating  liquor  of  any  agent,  intentionally 
makes  a  false  statement  regarding  the  use  to 
which  the  liquor  is  intended  to  be  applied,  shall 
j^ay  a  fine  of  not  less  than  five  nor  more  than 
twenty  dollars." 

SALES    SPECIALLY   AUTHORIZED. 

Sec.  27.  "The  importer  of  liquor  of  foreign  pro- 
duction may  own,  possess,  keep,  or  sell  the  same  in 
the  original  packages,  and  in  quantities  not  less 
than  the  quantities  in  which  the  laws  of  the  United 
States  require  such  liquors  to  be  imported." 

Sec.  28.    "Druggists  may  sell,  for  medicinal  pur- 

^  General  Laws  of  Massachusetts,  June,  1869. 


76  PROHIBITORY  LIQUOR  LAW. 

poses  only,  pure  alcohol  to  other  druggists,  apoth- 
ecaries, and  pliysicians. 

Sec.  29.  "A  chemist,  artist,  or  manufacturer 
may  keep  for  use,  not  for  sale.  Any  person  may 
manufacture  or  sell  wine  for  sacramental  purposes. 
Any  person  may  manufacture  or  sell  cider,  not  sold 
or  kept  with  intent,  at  a  j^ublic  bar,  to  be  drank  on 
the  premises." 

Sec.  32.  "  Whoever  directly  or  indirectly  sells 
to  another  person  spirituous  or  intoxicating  liquor, 
or  mixed  liquor,  part  of  wdiich  is  spirituous  or  intox- 
icating, in  violation  of  the  provisions  of  this  act, 
shall,  for  one  violation,  pay  ten  dollars  and  be  im- 
prisoned in  the  house  of  correction  not  less  than 
twenty  nor  more  than  thirty  days ;  for  a  second 
violation,  shall  pay  twenty  dollars  and  be  impris- 
oned in  the  house  of  correction  not  less  than  thirty 
nor  more  than  sixty  days ;  and  for  any  subsequent 
violation  shall  pay  fifty  dollars  and  be  imprisoned 
in  the  house  of  correction  not  less  than  three  nor 
more  than  six  months." 

Sec.  35.  "  In  all  cases  under  this  act,  delivery  of 
intoxicating  liquor  in  or  from  any  building  or  place, 
other  than  a  private  dwelling-house  or  its  depen- 
dencies, or  in  such  dwelling  or  dependencies,  if  i:>art 
of  the  same  is  a  tavern,  &c.,  shall  be  deemed  pm7?a 
facie  evidence  of  and  punishable  as  a  sale ;  and  a 
delivery  in  or  from  a  private  dwelling-house,  with 


THE  WORKING  OF  PROHIBITION.       77 

payment  implied,  shall  be  deemed  prima  facie  evi- 
dence of  and  punishable  as  a  sale." 

Secs.  36,  37,  38,  39.  "  Whoever  owns  liquors  with 
intent  to  sell ;  whoever  receives  the  same  to  con- 
vey to  another  intending  to  sell ;  whoever  receives 
for  a  railroad;  whoever  brings  into  the  Common- 
wealth, or  conveys  from  place  to  place  within  the 
same,"  all  these  are  fined  or  imprisoned,  and  a  rail- 
road is  to  be  fined  fifty  dollars  for  each  ofience. 

Sec.  62.  "All  intoxicating  liquors  kept  for  sale, 
and  the  implements  and  vessels  actually  used  in 
selling  and  kee])ing  the  same,  contrary  to  the  pro- 
visions of  this  act,  are  declared  to  be  common 
nuisances." 

Chap.  442  — Sec.  1.  "The  word  « constable,' 
wherever  it  occurs  in  Chap.  415,  shall  be  held  and 
construed  to  include  within  its  meaning  the  con- 
stable of  the  Commonwealth  and  his  deputies." 

This  act  was  amended  eleven  times  in  four 
years,  or  to  1873  inclusive.  As  the  Chief  of 
the  Boston  Police  says  :  — 

"The  law  for  the  suppression  of  the  sale  of 
intoxicating  drinks  is  manifold  in  its  provisions, 
including  the  single  sale,  the  second  sale,  common 
sale,  seizure,  and  common  nuisance  clauses,  each 
with  its  respective  penalty.  .  .  .  The  duties  im- 
posed   on    the     new   organization    (^.e.,    the   state 


78  PROHIBITORY  LIQUOR  LAW. 

constabuLaiy)  were  of  no  inconsiderable  magni- 
tude ;  but  it  is  reasonable  to  suppose  that  all  officers 
on  whom  the  duty  devolved,  faithfully  carried  out 
the  policy  of  the  authorities  under  whom  they 
served;  certainly  a  great  many  prosecutions  have 
been  made  under  all  the  provisions  of  the  law  by 
both  local  and  state  officers ;  hut  yet  drunkenness, 
tJie  evil.)  has  not  diminished^  ^ 

According  to  the  Police  Report,  in  1872, 
there  were  in  Boston  2,768  places  for  the  sale 
of  liquors,  or  one  shop  for  every  99  inhabitants. 
Providence,  which  at  the  same  time  had  a  very- 
loose  license  system,  reports  one  shop  for  223 
hihabitants.  According  to  Arnold,  London 
had  10,000  "  public  and  beer  houses,"  or  one 
to  about  300  inhabitants.  These  figures  are  all 
approximate,  and  the  most  accurate  which 
are  to  be  had.  They  show  that  the  traffic 
which  is  cut  off  by  prohibition  in  country 
towns  is  recompensed  in  Boston.  With  our 
abundant  transportation,  this  transferred  traffic 
is  easily  carried  on. 

1  Report  of  Chief  of  Boston  Police,  1872,  p.  50.  The  italics 
are  ours. 


THE  WORKING  OF  PROHIBITION,       79 

The  State  Board  of  Ilealtli  of  Massachusetts 
are  equally  positive  in  their  conviction  that 
the  prohibitory  law  has  not  practically  suc- 
ceeded.    We  cite  :  — 

"For  years  pubHc  sentiment  in  the  Common- 
wealth has  fluctuated  between  the  extremes  of 
action  and  reaction  on  this  mattei*.  Meanwhile, 
it  seems  certain  tliat  while  throughout  the  State 
there  is  less  drunkenness  than  formerly,  it  never 
was  more  rampant  than  now  in  Boston  and  some 
of  the  larger  cities.  This  habit  the  Board  believe 
to  be  infinitely  deleterious  '  to  the  prosperity,  hap- 
piness, health,  and  lives  of  the  citizens.'  The 
records  of  our  courts,  and  the  knowledge  which 
every  one  has  of  its  effects  in  the  private  family, 
assure  us  of  this  fact.  The  evil  is  enormous.  How 
to  remedy  it  is  the  difficulty.^ 

In  the  small  villages  and  country  towns  of 
Massachusetts,  as  well  as  Rhode  Island,  the 
law  has  proved  more  effective.  Whether  this 
success  is  not  superficial  and  dearly  purchased, 
is  matter  of  doubt.  When  we  dam  a  stream, 
it   is   not   stopped ;    the    current  ceases  as   we 

i  Report  of  the  State  Board  of  Health,  1871,  p.  11. 


80  PROHIBITORY  LIQUOR  LAW. 

look  upon  it,  but  while  the  sources  remain 
the  stream  gathers  new  force,  and  cuts  new 
channels,  made  even  more  dangerous  by  the 
dam  we  have  interposed. 

Laws  in  this  country  are  born  out  of  the 
life  of  the  people.  In  the  world's  history  the 
state  has  never  distributed  its  sovereignt}"  so 
lavishly  and  freely  as  our  American  govern- 
ment has  done.  The  people  have  great  power, 
and  their  mood  takes  speedy  effect  in  legisla- 
tion, especially  in  the  state  organisms.  Sov- 
ereignty is  absolute,  and  knows  no  moral  right 
or  Avrong  after  it  has  once  uttered  itself  in  a 
statute.  Hence  a  statute  must  either  be  in 
such  accord  with  our  common  living  that  it 
works  itself  out  easily,  or  it  will  remain  a 
dead  letter,  and  be  eddied  by  the  popular  cur- 
rent passing  by  it.  The  people  will  hardl}- 
resist  it  by  means  of  the  regular  forms  of  legal 
resistance,  for  they  made  it.  A  prohibitory 
liquor  statute  carries  injustice  witli  it.  The 
man  seeking  to  purchase  is  not  a  criminal  un- 
less  he  is  drunk  ;  he  fnids  a  seller  willing  to 


THE  WORKING  OF  PROHIBITION.       81 

take  the  risk  of  the  hxw,  and  the  seller  is 
always  supported  by  the  public  sentiment  of 
that  part  of  the  community  he  knows  most 
of.  He  is  tacitly  supported  by  the  Avhole  com- 
munity ;  for  the  people  who  give  weight  to 
ordinary  legal  administration  —  what  we  term 
the  respectable  part  of  society  —  take,  and  will 
take,  no  practical  action  in  liquor  prosecutions. 
No  man  hesitates  to  inform  or  testify  aofainst 
theft  or  against  maltreating  brutes,  or  any 
other  crime  which  common  public  sentiment 
abhors.  A  citizen  does  not  like  to  dabble  with 
liquor-selling ;  the  buyers  will  hardly  testify  ; 
hence  the  prosecutors  resort  to  shifty  tricks  to 
establish  their  suits.  The  local  officers  are  but 
the  executive  arm  of  their  communities ;  they 
are  men  of  like  passions  to  those  among  whom 
they  live.  If  it  were  an  honorable  and  de- 
sirable pursuit  to  follow  liquor-selling  through 
its  sinuous  devices,  they  would  seize  upon  the 
honor.  As  it  is,  they  generally  decline  the 
opportunity. 

For  these  reasons,  the  prohibitionists  devised 


82  PROHIBITORY  LIQUOR  LAW. 

the  state  constabulary,  by  means  of  which  the 
ocliam  of  executing  the  law  should  be  removed 
from  the  provinces  of  home  rule  and  laid 
upon  a  central  force  emanating  from  the  state. 
The  pressure  brought  to  bear  on  these  imperial 
officials  by  the  Joneses  we  have  described,  and 
the  abstinence  politicians  should  be  sufficient 
to  keep  the  law  in  operation.  In  a  measure 
the  system  has  succeeded,  for  it  has  brought 
the  power  of  the  state  to  bear  more  readily 
on  the  details  of  government  than  we  have  ever 
known  in  our  American  experience.  Carried 
out,  it  would  destroy  town  government,  the  cor- 
ner-stone of  our  republic.  A  town  not  able  to 
administer  its  liquor  laws  wisely  would  soon 
fail  in  other  administration.  A  board  of  bridge- 
builders,  another  of  road-makers,  another  of 
almshouse  keepers,  and  another  and  another, ' 
all  under  state  control,  might  conduct  their 
first  operations  more  wisely  than  the  citizens 
of  a  small,  and  remote  town  might  do  the 
same  ;  but,  meanwhile,  what  would  become 
of  the  citizen  on  whom  the  town  rests?  what 


THE  WORKING  OF  PROHIBITION.       83 

of  the  town  on  ^vhich  the  state  rests  ?  It 
is  the  method  of  imperial  Russia,  it  is  the 
method  of  France,  which  adapts  itself  equally 
well  to  an  ephemeral  republic  or  to  an  empire. 
It  needs  the  virtues  of  a  despotism  as  well 
as  its  power  to  make  it  tolerable  in  admin- 
istration. Mingle  the  powers  of  a  despotism 
with  the  vices  of  party  politics,  and  the  result 
will  not  better  the  state,  even  though  a  few 
liquor  shops  are  closed  in  the  process.  It  is 
matter  of  common  report  in  Massachusetts  that 
practices  are  instituted  under  this  system  which 
should  make  all  good  citizeus  grieve,  whether 
they  be  temperate  or  abstinent  in  principle. 

Both  Rhode  Island  and  Massachusetts  have 
good  assay  laws,  which  rest  on  the  statute-book 
with  no  practical  results.  The  abstinence  men 
do  not  care  to  stop  the  sale  of  adulterated 
liquors  as  such.  The  difference  between  the 
good  and  the  bad  is  to  them,  as  Mr.  Toots 
would  say,  of  ''  no  consequence."  Their  aim 
is  to  suppress  the  whole  traffic,  and  the  further 
this  impossible  goal  is  removed,  the  more  ardent 


84  PROHIBITORY  LIQUOR  LAW. 

becomes  their  pursuit  of  it.  Any  practicable 
regulation  to  cut  off  present  evils  moves  them  to 
tacit  opposition,  or,  at  best,  to  indifference. 

In  Khocle  Island,  the  old  Maine  Law  of  1852, 
with  its  amendments,  was  allowed  to  sleep  on 
the  statute-book,  the  legislature  meanwhile 
granting  privileges  for  local  license  to  the 
towns  and  cities.  In  May,  1874,  the  General 
Assembly  repealed  all  the  license  laws,  re-estab- 
lished the  original  seizure  powers  of  the  Neal 
Dow  law,  with  even  more  stringent  provisions, 
and  appointed  a  force  of  state  constables.  In 
July,  with  great  fanfaronade,  the  work  of  pro- 
hibiting the  sale  of  intoxicating  drinks  began. 
The  reader  who  is  not  so  fortunate  as  to  live 
within  the  bounds  of  our  little  but  strong  State 
may  suppose  that  this  law  was  the  result  of 
some  change  in  the  opinions  of  the  people  of 
Rhode  Island  ;  some  deep  conviction  Avhich 
gave  an  impulse  to  the  legislators,  and  would 
afford  power  to  enforce  and  maintain  it.  A 
prohibitory  law  is  not  made  in  that  way.  There 
was  a  crisis  in  Rhode  Island  politics,  worse  than 


THE  WORKING  OF  PROHIBITION.       85 

the  one  which  Thackeray  so  humorously  por- 
trays in  the  affairs  of  England.  A  senatorial 
chair  was  to  be  vacated,  and  the  aspirants  dis- 
puted for  the  prize.  The  contest  was  fierce,  with 
many  ballotings.  Mr.  X  couldn't,  Mr.  Y 
mustn't,  and  Mr.  Z,  the  temperance  leader, 
wouldn't  come  in.  The  astute  man  asters  for 
one  of  the  candidates  thought  that  by  enacting 
a  constabulary  and  prohibitory  statute  they 
could  gain  a  move  over  theu'  opponents.  Mr. 
Z,  the  temperance  leader,  was  personally  pop- 
ular, and  might  have  drawn  sufficient  support 
from  the  other  parties  to  elect  him,  but  he 
wouldn't  accept,  and  in  no  event  could  a  direct 
prohibitionist  be  elected  on  that  issue  ;  the  gen- 
eral government  and  the  United  States  treasury 
have  never  appreciated  prohibition.  Therefore 
these  calculating  gentlemen  foresaw  a  prohib- 
itory measure  might  help  their  "  slate  "  :  thus  it 
was  done.  It  is  whispered  about  that  the  men 
who  actually  made  this  law  were  not  strongly 
convinced  in  their  own  persons  of  the  good  of 
total  abstinence.     It  is  even  hinted  that  these 


86  PROHIBITORY  LTQUOR  LAW. 

politicians  do  not  hold  themselves  bound  Ly  the 
State  la^Y,  but  remand  their  allegiance  to  that 
higher  law  which  sends  taxes  on  whiskey  into 
the  United  States  treasury,  where  they  are 
much  needed.  Besides,  those  Avho  criticise 
and  carp  at  these  patriots  forget  that  there 
is  no  statute  in  Rhode  Island  which  forbids  a 
legislator  or  a  political  manager  to  drink.  The 
prohibition  is  upon  the  8ale, 

The  agitators  set  their  machinery  in  motion 
during  the  summer,  and  in  the  autumn  a  lot  of 
cases  were  under  way.  It  is  supposed  there 
are^  fi^illy  five  hundred  suits  instituted.  It  is 
evident  that,  if  law  and  litigation  would  ac- 
complish the  suppression  of  the  traffic,  there  is 
enough  in  process  in  Rhode  Island.  They  made 
loud  noise,  and  one  might  suppose  that  no  man 
would  dare  to  tap  a  cask.  Still  the  knowing 
ones  said  that  the  sale  was  going  on  in  different 
form,  but  in  as  large  quantity  as  ever.  The 
state  constables  bustled  about  and  worked  faith- 
fully as  they  could  ;  there  is  no  question  of  their 
^  In  December,  1871. 


THE  WORKING  OF  PROHIBITION.       87 

integrity.  They  could  not  be  entirely  fair,  as 
politics  are  constituted.  Where  a  dealer  had 
strong-  political  iniiuence,  —  and  the  shrewd  ones 
among  them  have  this,  owing  to  the  inverse 
working  of  these  ver}^  laws,  —  the  constables 
found  it  convenient  to  pass  him  by.  But  they 
seized  many  stocks  of  liquors,  and  large  ones,  to 
await  trial  under  the  new  statute.  There  is  so 
much  good  done,  j'ou  will  say ;  to  get  any  sub- 
stantial quantity  of  liquors  out  of  the  shops  is 
a  blessing.  Innocent !  you  do  not  understand 
the  plain  ways  of  liquor  laws.  As  soon  as  the 
state  constable  attaches,  the  dealer  puts  his  legal 
machinery  at  work.  The  ownership  of  these 
large  stocks  of  liquors  is  in  men  who  live  in  New 
York.  They  at  once  sue,  and  the  United  States 
marshal,  one  greater  than  the  state  constable, 
takes  possession.  Well,  the  liquors  are  safe, 
good  women  will  say  ;  some  good  is  done.  Not 
at  all.  The  United  States  assumes  no  further 
responsibility  than  it  is  obliged  to,  in  any  civil 
suit,  for  any  property  interest.  In  this  suit,  it 
only  cares  for  the  plaintiff,  who  wants  his  liquor, 


88  PROHIBITORY  LIQUOR  LAW. 

therefore  the  marshal  appoints  a  keeper  who  is 
satisfactory  to  the  plaintiif,  and  if  he  chooses  he 
appoints  a  clerk  of  the  Rhode  Island  dealer.  The 
marshal  has  no  other  course  open  to  him  ;  he 
discharges  his  duty  morally  and  legally  when 
he  satisfies  the  plaintiff.  So  the  liquors  have 
rounded  the  circumlocution  office,  and  passed 
back  into  the  virtual  control  of  the  dealer  from 
whom  they  started.  The  dealer  then  goes  on 
retailing  with  a  small  stock  at  risk  of  seizure, 
but  the  bulk  of  his  property  is  under  the  virtual 
protection  of  the  United  States  government. 
The  fault  is  not  in  any  executive,  it  is  in  the 
law  itself,  which  starts  in  injustice  and  ends  in 
absurdity.  If  you  say  the  same  evasion  might 
follow  any  law  of  regulation,  we  answer  no. 
Any  law  which  does  not  work  out  public  senti- 
ment will  be  evaded,  if  not  by  the  above  process, 
by  some  other  equally  ingenious.  But  ingenuity 
never  saved  a  public  offender  where  the  public 
were  in  earnest.  The  public  mind  assents  to 
the  theory  of  regulation  ;  enthusiasts  attempt  to 
turn  that  sentiment  into  prohibition ;  the  result 


THE  WORKING  OF  PROHIBITION.       89 

in  practice  is  a  mush  which  is  neither  prohibi- 
tory nor  regulative. 

All  this  legal  and  governmental  commotion 
produced  a  corresponding  effect  on  the  public 
mind.  The  newspapers  were  filled  with  noisy 
assertions  that  liquor-dealing  was  crushed  or 
being  crushed,  and  that  prohibition  was  ex- 
alting itself  day  by  day  in  the  estimation  of 
the  citizens  of  Rhode  Island.  This  expression 
culminated  in  the  testimony  of  Gov.  Howard, 
who  is  politically  affiliated  with  the  prohibition- 
ists, at  a  convention  of  the  Rhode  Island  Tem- 
]perance  Union.     He  said  :  — 

..."  I  stopped  short  without  recommending  par- 
ticularly the  prohibitory  law.  I  did  so  because  I  was 
not  fully  convinced  that  it  was  the  best  remedy  to 
be  found  ;  but  the  law  was  adopted.  After  a  long 
time  we  succeeded  in  selecting  such  a  force  of  men 
as  was  needed  to  execute  those  laws ;  and  now, 
ladies  and  gentlemen,  I  am  here  to-night,  especially 
for  the  purpose  of  saying,  laot  from  the  stand-point 
of  a  temperance  man,  but  as  a  public  man  with  a 
full  sense  of  the  responsibility  wdiich  attaches  to  me 
from  my  representative  position,  that  to-day  the 
prohibitory  laws  of  this   State,  if  not  a  complete 


90  PROHIBITORY  LIQUOR  LAW. 

success,  are  a  success  beyond  the  fondest  anticipa- 
tions of  any  friend  of  temperance,  in  my  opinion. 
Ladies  and  gentlemen,  prohibitory  legishition  in 
Rhode  Island  is  a  success  to  a  marvellous  extent. 
I  have  desired,  I  have  felt  it  incumbent  upon  me  to 
make  that  declaration,  and  I  desire  that  it  shall  go 
abroad  as  my  solemn  assertion."  ^ 

This  was  on  the  eve  of  the  29th  of  October. 
"  The  Union,"  the  organ  of  the  prohibitory 
party,  on  the  4th  of  December,  in  an  article 
entitled  "  The  Future  Outlook  for  Prohibition," 
makes  this  statement :  — 

"  What  has  been  done  to  enforce  the  law,  aside 
from  the  labors  performed  by  two  or  tliree  of  the 
seven  deputies?^  Why,  little  or  nothing  at  all. 
The  dealers  %7i  intoxicating  liquors  have  made  some 
little  changes  in  their  tnode  of  doing  business^  and 
the  business  goes  forioard ]\\iit  as  deiiantly  as  though 
it  were  a  virtue  to  trample  the  statutes  of  a  little 
State  like  Rhode  Island  under  foot." 

The  piteous  whine  for  the  little  State  was 
gratuitous,  for  Massachusetts  conflicts  in  the 
same  or  similar  processes  of  law  with  the  gcn- 

1  Extract  from  report  of  speech  in  "  Providence  Journal." 
-  i.e.,  State  constables.     Tlie  italics  are  ours. 


THE  WORKING  OF  PROHIBITION.       91 

eral  government.  The  statement  of  the  '^  Union  " 
was  correct,  and  confirmed  by  tlie  common  ob- 
servation of  all  except  the  few  whose  brains 
and  ears  were  filled  with  prohibitory  prejudice. ^ 
If  the  law  was  a  dead  or  dying  failure  on  the 
4th  of  December,  it  is  obvious  that  it  could  not 
have  been  '^  a  marvellous  success  "  on  the  29th 
of  October,  only  five  weeks  previous.  Gov. 
Howard  is  an  honorable  man,  more  unselfish 

1  Since  the  above  was  in  type,  Mayor  Doyle,  of  Provi- 
dence, has  published  his  annual  report,  and  we  cite :  — 

*'  The  number  of  arrests  during  the  past  year  has  been  less 
than  in  the  preceding  year ;  and  this  fact  was  to  have  been 
expected  from  the  depression  of  business,  particularly  in  the 
manufacturing  branches.  This  result  has  been  observed  in 
police  experience  heretofore.  At  such  times  the  arrests  for 
drunkenness  and  small  offences  growing  out  of  the  use  of  in- 
toxicating liquors  decrease.  The  enactment  of  a  prohibitory 
liquor  law  has  not  reduced  the  number  of  places  for  the  sale  of 
liquor  in  this  city.  At  the  present  time,  the  number  of  places 
where  liquor  can  be  obtained  is  larger  than  at  any  time  here- 
tofore. It  has,  however,  changed  the  mode  of  selling;  and,  in 
many  of  the  places,  instead  of  a  variety  of  liquors  being  kept 
on  hand  and  in  considerable  quantity,  a  single  kind  and  but  a 
small  quantity  is  now  kept  where  it  can  be  found.  There  has 
been  considerable  increase  during  the  past  few  months  in  the 
number  of  young  men  upon  the  streets  under  the  influence  of 
liquor,  and  complaints  of  rowdyism  from  this  class  are  becom- 
ing very  frequent,  far  moi'e  so  than  we  have  been  accustomed 
to  receive." 


92  PROHIBITORY  LIQUOR  LAW. 

than  ordinary  politicians.  The  facts  prove  the 
political  principles  we  stated  in  our  introduc- 
tion. An  honest  man,  deluded  by  the  noise  of 
zealots,  is  driven  into  a  declaration  which  his 
common  sense  would  never  have  entertained, 
if  he  could  have  allowed  that  wholesome  moni- 
tor to  be  heard.  It  is  seldom  the  futility  of 
prohibition  is  proven  in  such  dramatic  experi- 
ence, but  the  principle  is  the  same  everywhere. 
Rhode  Island  is  a  small  community,  and  makes 
history  promptly,  whether  in  the  Dorr  rebellion, 
the  Union  struggle,  or  in  the  vagaries  of  pro- 
hibition. The  law  works  quickly,  the  reaction 
is  speedy,  and  these  facts  are  thrown  out  upon 
the  surface,  so  that  people  must  recognize  them. 
The  statute  is  the  same  as  elsewhere,  a  little 
more  stringent  perhaps,  it  being  the  latest  con- 
trivance ;  the  people  are  much  the  same  in  their 
habits  with  those  of  other  Eastern  States. 

The  writer  has  enjoyed  the  freest  confidence 
of  the  of&cers  of  the  law  in  almost  every  de- 
partment of  its  administration.  He  has  never 
found   one  who  believed  the  law  has  been  or 


THE  WORKING  OF  PROHIBITION.       93 

can  be  executed  in  such  a  wa}^  as  to  sensibly 
lessen  the  traffic  in  intoxicating  liquors.  Many 
interesting  facts  coming  from  their  sources 
have  gathered  in  the  writer's  note-book  while 
he  has  been  investigating  this  matter;  he  has 
space  for  but  few  of  them.  While  the  State 
and  the  United  States  officers  were  trying  their 
strength  over  the  liquor  in  the  barrel,  what 
were  the  retailers  about?  To  the  eye,  many 
shops  were  dry ;  ^  but  on  one  street  there  were 
fourteen  dwellings  which  had  meanwhile  begun 
to  retail  spirits.  Imagine  the  consequences  of 
converting  fourteen  homes  into  drinking  dens, 
—  this  on  one  street,  —  then  extend  the  picture 
over  a  large  city.  These  were  the  haunts  of  the 
poorer  classes.  At  the  same  time,  one  man  had 
upon  his  pocket-ring  seven  keys  to  as  many 
different  club-rooms  opened  for  the  purpose  of 
drinking.  The  upper  classes,  as  they  are  called, 
organized  these  clubs  in  all  quarters  of  the  city ; 
we    have   already  cited   evidence  showing  the 

1  In  other  cases  the  sale  kept  on.  There  would  be  three 
different  seizures  at  one  shop  within  two  months.  Yet  the 
daily  sale  would  hardly  be  diminished. 


94  PROHIBITORY  LIQUOR  LAW. 

effects  of  these  illicit  institutions.  The  positive 
effect  produced  by  the  law  was  chiefly  in  cut- 
ting off  uses  of  liquors,  which  all  but  extremists 
would  agree  were  not  harmful.  This  instance 
occurred,  and  we  give  it  in  the  words  of  one 
of  the  parties  concerned  :  — 

"A  German  woman  expecting  to  die  desires  the 
communion  in  conformity  with  the  usages  of  her 
church.  She  sends  for  a  clergyman,  who  has  no 
wine,  in  consequence  of  the  prohibitory  law.  To 
obtain  the  wine,  the  clergyman  applied  without 
success  to  a  fellow-clergyman,  and  then,  the  matter 
being  urgent,  he  addressed  a  note  to  a  respectable 
druggist,  who  reluctantly  furnishes  a  small  amount 
of  vile  stuff.  Through  a  mistake,  the  wine  was  sent 
to  the  clergyman's  house,  who  could  not  conscien- 
tiously convey  this  stuff  to  the  patient,  and  destroyed 
it.  He  applied  to  a  leading  druggist,  knowing  him 
personally,  for  some  pure  wine.  The  druggist  most 
reluctantly  furnished  the  article  desired,  which  was 
presently  forwarded  to  the  patient.  The  patient, 
when  it  arrived,  no  longer  needed  the  wine,  or  the 
communion,  or  the  pastor." 

This  pathetic  story  is  an  exceptional  affair, 
but  it  truly  illustrates  the  cumbrous  working  of 


THE  WORKING  OF  PROHIBITION.       95 

that  legal  machinery  which,  created  to  catch  the 
virtuous  and  vicious  ahke,  allows  the  vicious  to 
slip  through,  and  ensnares  the  few  j)eople  whose 
consciences  would  need  no  statute. 

The  writer  was  obliged  to  send  to  New  York 
at  about  this  time  for  a  jug  of  cooking  wine. 
He  could  not  get  it  in  Providence  without 
breaking  the  law,^  though  it  was  notorious  that 
the  law  was  being  broken  daily. 

The  number  of  persons  who  are  habitualty  or 
often  drunk,  in  proportion  to  the  whole  number 
who  drink  liquors,  is  not  as  large  as  we  generally 
suppose.  In  the  city  of  Providence,  the  popula- 
tion of  1873  was,  in  round  numbers,  85,000. 

"Dm'ing  the  year  1873,  in  the  total  number  of 
arrests  there  were  4,211  different  persons,  instead  of 
5,920  ;  there  being  1,040  persons  previously  arrested 
for  the  same  offence  during  the  year  from  two  to 
twenty-three  times,  and  is  equal  to  1,709  arrests ;  the 
number  of  non-residents  arrested  was  1,140.  By 
deducting  these,  we  have  but  3,071  persons  arrested 
for  drunkenness  that  were  actual  residents  of  this 

1  At  that  time  a  few  dealers  were  selling  on  licenses  not  ex- 
pired. But  they  were  not  of  the  class  with  whom  the  writer  is 
■wont  to  deal.  Neither  the  grocer  nor  apothecary  could  then 
legally  sell  a  gallon  of  cooking  wine. 


96  PROHIBITORY  LIQUOR  LAW. 

city,  —  the  number  of  repeaters  being  equal  to  29 
per  cent  of  the  total  arrests,  and  the  number  of  non- 
residents equal  to  19  per  cent,  —  making  the  num- 
ber of  repeaters  and  non-residents  equal  to  48  per 
cent  of  the  whole  number.  The  number  of  repeat- 
ers has  gradually  decreased  during  the  past  four 
years.  This  may,  to  a  very  great  extent,  be  attrib- 
uted to  the  good  influences  brought  to  bear  through 
the  united  labors  of  the  various  temperance  organi- 
zations in  the  city  and  state.^ 

Respecting  tlie  non-residents,  the  report  says 
"  they  were  employed  in  laying  water-pipes  for 
the  introduction  of  Pawtuxet  water,  in  building 
sewers  and  reservoirs,  and  in  widening  streets, 
&c.  I  think  I  am  safe  in  saying  that  eight-tenths 
of  this  nmnber  were  men  of  intemperate  habits, 
and  a  very  large  proportion  of  them  are  classed 
among  the  repeaters  for  the  last  four  years." 

If  the  matter  of  drinking  was  confined  to  these 
unfortunate  wards  of  the  police,  it  might  per- 
haps be  more  easily  controlled.  But  look  at  the 
facts.  In  1872,  the  police  report  22  drug  stores 
selling  under  license,  and  358  other  places  of 
sale,  making  380.     In  1873,  there  were  about  as 

1  Report  of  the  Chief  of  Providence  Police,  p.  16. 


THE  WORKING  OF  PROHIBITION.       97 

many  ;  it  is  not  a  question  of  strict  prohibi- 
tion ;  the  new  act  did  not  begin  until  July,  1874. 
These  380  places  would  furnish  a  shop  for  every 
12  of  the  above-named  4,211  common  drunkards. 
Twelve  customers  would  hardly  support  a  shop, 
even  if  they  drank  without  cessation.  Besides, 
no  traffic  was  ever  sustained  by  that  class  of  per- 
sons exclusively.  A  traffic  so  extensive  as  this 
gets  a  portion  of  the  wages  of  solid  industry, 
or  it  could  never  sustain  its  wide  proportions. 

The  w^riter  was  able  to  investigate  the  drink- 
ing habits  of  a  group  of  168  adult  workingmen. 
It  was  a  i^icked  force,  common  laborers,  with  a 
fair  proportion  of  skilled  men.  Of  these,  68  were 
abstinence  men,  and  100,  or  about  60  per  cent, 
drank  alcoholic  liquors  more  or  less.  None  of 
these  were  habitual  drunkards,  and  very  few 
were  occasionally  intoxicated.  These  latter 
were  most  affected  by  the  Sunday  drinking, 
which  is  the  worst  form  of  intemperance. 
Hardly  any  of  these  men  were  to  be  found 
among  the  arrested,  resident  or  non-resident. 
A  man  of  this  class  would  lose  caste  among  his 
fellows  should  he  be  arrested.     These  are  not 

5  G 


98  PROHIBITORY  LIQUOR  LAW. 

"  statistics,"  but  actual  facts,  and  other  groups 
of  laborers  would  doubtless  afford  similar  re- 
sults. The  point  at  issue  is  not  whether  it  is 
wise  or  unwise  for  these  men  to  drink  liquors, 
but  whether  society,  as  a  whole,  can  absolutely 
prohibit  an  appetite  which  fully  one-half  of  the 
respectable  laboring  people  consider  reasonable. 
Of  the  habits  of  the  so-called  upper  classes,  the 
reader  can  judge  for  himself. 

It  is  acknowledged  that  while  the  legal  meas- 
ures are  being  pushed,  the  efforts  of  the  Temples 
of  Honor  and  other  voluntary  temperance  asso- 
ciations in  Rhode  Island  are  lessened,  and  the 
corresponding  results  are  less.  These  associa- 
tions and  all  methods  of  temperance  reform  need 
a  constant  supply  of  personal  enthusiasm,  and  it 
is  this  vital  influence  Avhich  affects  the  drunkard 
and  forces  him  to  change  his  habits.  Naturally, 
while  the  prohibitionists  are  praying  to  Hercu- 
les, and  trying  to  force  the  Liw  into  impossible 
channels,  the  enthusiasm  which  would  find  a 
legitimate  exercise  upon  individuals  is  absorbed 
and  lost  in  grinding^  at  the  great  government 
mill. 


THE  GROUNDS  OF  PROHIBITION.       99 


THE  GROUNDS  OF  PROHIBITION. 


TT  may  be  useful  to  look  toward  the  grounds 
on  which  the  prohibitionists  rest  their  argu- 
ments, and  to  consider  the  subject  from  their 
point  of  view.  In  1866  and  1867  a  strong  peti- 
tion was  made  to  the  Massachusetts  legislature 
for  a  license  law,  or  for  such  change  in  the  then 
prohibitory  statute  as  would  recognize  the  sale 
of  liquors.  This  petition  was  supported  by 
Governor  Andrew,  and  a  joint  special  commit- 
tee devoted  long  sessions  to  the  hearing  of  tes- 
timony on  both  sides.  Numbers  of  leading 
citizens,  representing  almost  every  vocation, 
were  examined  by  one  party  or  the  other. 
Rev.  Dr.  A.  A.  Miner,  a  distinguished  Univer- 
salist  divine,  appeared  for  the  Massachusetts 
Temperance  Alliance  and  the  remonstrants,  or 
the  supporters  of  the  prohibitory  statute.     The 


100  PROHIBITORY  LIQUOR  LAW. 

remonstrance  was  strong  and  weighty,  repre- 
senting generally  the  influence  of  ''  the  active 
friends  of  temperance,  the  tried  and  true  co- 
laborers,"  using  the  language  of  their  own  re- 
port.    The  petition  fiiiled. 

Dr.  Miner's  argument  ^  lasted  three  and  a 
half  hours,  and  fills  a  pamphlet  of  122  pages. 
As  might  be  supposed,  from  the  gravity  of  the 
occasion,  he  gathered  all  the  points  relied  on  by 
prohibitionists,  and  we  shall  quote  freely  from 
his  exposition.  In  one  sense  the  argument,  as  a 
whole,  supports  our  main  issue,  for  it  is  a  total 
abstinence  plea  addressed  to  a  majority  in  a 
legislature  constituted  in  the  manner  we  have 
described.  As  we  claim  that  legislation  must 
ground  itself  on  the  actual  life  of  the  whole 
people,  and  not  on  the  moral  desires  of  a  faction, 
however  worthy  that  desire  may  be,  it  is  a  strong 
collateral  proof  of  our  position,  that  the  prohibi- 
tionists must  argue  teetotally  and  not  generally. 

To   get   the  drift  of  the  argument,  we  will 

*  Argument  on  the  Riglit  and  Duty  of  Prohibition.  A.  A. 
Miner.     Boston  :  Wright  &  Potter,  Printers. 


THE   GROUNDS   OF  PROHIBITION.     103 

state,  briefly  and  clearly  as  we  can,  the  pohjst 
which  he  makes,  some  by  proof  and  some  by 
assertion,  in  the  order  in  which  they  stand :  — 

—  The  agitation  is  a  hquor-dealer's  movement. 

—  TeetotaUsm  is  the  only  temperance  —  and  bet- 
ter than  any  use  of  hquors. 

—  A  strong 'array  of  statistics,  showing  the  ma- 
terial cost  and  increase  of  disease  by  intemperance ; 
also  the  indirect  cost  through  crime. 

—  "  Alcohol  is  classed  as  a  poison."^  This  asser- 
tion is  nowhere  established.  There  is  much  contra- 
dictory testimony  discussed  on  respiratory  food, 
and  especially  whether  "alcohol  is  assimilative,  that 
it  does  the  office  of  food  by  arresting  the  disintegra- 
tion of  tissues."  The  weight  of  testimony  cited  by 
the  Doctor  bears  toward  this  latter  view,  but  he 
claims  the  opposite.  He  keeps  to  his  direct  state- 
ment that  it  is  poison,  though  he  does  not  bring 
sufficient  proof.  ^ 

—  The  general  inutility  of  alcoholic  beverages  is 
established  through  Dr.  Carpenter. 

1  Argument,  p.  44. 

2  Dr.  Miner  relies  much  on  the  statement  of  "  the  elder  Dr. 
Bigelow,  that  if  intoxicating  beverages  liad  never  been  dis- 
covered, the  well-being  of  the  race  would  have  been  promoted." 
The  writer  respectfully  suggests  to  both  the  reverend  and  the 
medical  gentlemen,  that  is  one  of  the  mysterious  things  "  no 
feller  can  find  out." 


100        kohibitory  liquor  law. 

-  There   is   less   drunkenness   in  Massachusetts 
than  in  wine-drinking  countries. 

—  "  There  is .  not  the  slightest  evidence  of  the 
Scriptures  giving  any  countenance  whatever  to  the 
use  of  fermented  liquors."  ^  "  Paul  was  a  total  ab- 
stainer, Timothy  was  a  total  abstainer."  ^ 

—  Liquors  may  be  useful  as  medicines,  but  not  as 
beverages;  even  if  useful  as  beverages,  social  ex- 
ample requires  abstinence. 

—  Disputes  Stuart  Mill's  position,  that  drinking 
is  a  right  of  individual  liberty;  claiming  that  the 
social  right  of  restraint  is  equivalent  to  right  to  sup- 
press obscene  books,  or  to  restrain  truancy,  and  tax 
for  education  of  the  truants.  He  shows  no  direct 
argument  for  the  legal  right  of  prohibition,  but 
claims  the  right  negatively.^ 

—  Answering  an  argument  that  the  law  is  not 
executed  in  Boston,  he  makes  three  points :  — I.  The 
authorities  are  to  blame  therefor.    II.  It  is  executed. 

1  Argument,  p.  66. 

2  Argument,  p.  71. 

3  We  cite  from  page  82  :  — "  Few,  if  any,  witnesses  here 
have  pointedly  denied  the  right  of  tlie  government  to  maintain 
a  prohibitory  law.  Perhaps  ex-Governor  Clifford  is  an  excep- 
tion to  this  remark.  When  asked  if  such  an  enactment  does 
not  transcend  the  legitimate  authority  of  the  State,  he  an- 
swered, '  undoubtedly.'  At  the  same  time,  he  proceeded  to 
say  that  the  State  has  a  right  to  enact  laws  which,  witliout 
attempting  the  impossible,  shall  restrain  the  sale  and  use  of  in- 
toxicating beverages." 


THE  GROUNDS   OF  PROHIBITION.     103 

III.  The  same  amount  of  non-execution  would  exist 
under  ii  license  law. 

—  Public  opinion  sustains  prohibition. 

—  That  under  the  state  constabulary  the  traffic 
and  drunkenness  in  Boston  both  diminished  in  two 
months. 

—  That  club-rooms  spring  up,  but  they  need 
not. 

—  Desire  for  social  excitement,  claimed  as  inherent, 
is  actually  promoted  by  drinking  usages,  and  is  arti- 
ficial, to  be  cured  by  rearing  several  generations  free 
from  drinking  usage. 

—  Natural  obstinacy  excited  by  prohibitory  law 
"  applies  to  every  criminal  law  and  to  every  criminal 
act  as  well  as  to  this." 

—  The  grand  democracy  of  our  institutions  can 
suppress  the  traffic,  though  the  old  world  fails.^ 

—  Discretion  should  not  be  given  towns  nor  cities. 
License  is  a  reversal  of  prohibition.  "  Everywhere 
rich  voluptuaries  will  combine  with  imbruted  igno- 
rance to  bear  down  the  sober  industry  of  the  com- 
monwealth." ^  "  If  I  were  to  define  a  license  law, 
stringent  or  otherwise,  engrafted  upon  our  present 
law  or  standing  alone,  I  would  say  that  it  is  a  legal 
means  of  recruiting  the  army  of  drunkards  with  the 
approbation  of  ex-governors  of  the  commonwealth, 

1  Argument,  p.  104.  2  Argument,  p.  107. 


104  PROHIBITORY  LIQUOR  LAW, 

whiskey-drinking  priests,  and  members  of  the  Fac- 
ulty of  Harvard  Medical  College."  ^ 

—  Resj^ectable  traffic  is  impossible.  "  Massachu- 
setts cannot  enact  a  law  that  will  make  the  selling 
of  liquors  respectable.  If  tlie  angel  Gabriel  should 
come  down  to  earth  and  sell  liquors  as  beverages,  he 
would  not  lift  the  business  up  to  heaven,  but  the 
business  would  drag  the  angel  down  to  hell."  ^ 

—  Alleged  duplicity  of  temperance  men  retorted 
on  "  moderate  indulgers."  "  Take  the  quantity  and 
the  quality  of  the  liquors  adulterated  ;  take  the  ter- 
giversations, subterfuges,  and  evasions  of  those  who 
say  they  will  obey  the  law  and  do  not ;  take  all 
these  into  account,  and  we  have  duphcity,  and 
enough  of  it.  Remember  that  here  is  a  foe  to  be 
watclied,  to  be  guarded ;  and  if  you  have  a  strong- 
hold on  this  enemy,  in  the  name  of  righteousness 
and  of  good  order,  I  exhort  you  not  to  let  go  that 
hold."  3 

The  writer  solemnly  affirms,  as  the  Friend 
would  say,  that  in  drawing  out  this  analysis  he 
did  not  mean  to  make  the  points  turn  against 
the  argument.  Not  every  point  made  is  quoted 
in  detail,  —  our  space  would  not  allow  it,  —  but 

1  Argument,  p.  110.  ^  Argument,  p.  110. 

3  Argument,  p.  120. 


THE  GROUNDS  OF  PROHIBITION.     105 

every  strong  one  is  stated,  and  as  fairly  as  we 
are  able. 

Dr.  Miner  is  an  able  contestant,  and  a  man 
of  high  moral  standing.  He  would  not  use 
these  same  arguments,  and  in  the  manner  he 
uses  them,  before  the  Supreme  Court,  nor  before 
a  jury  of  his  peers,  men  of  intelligence  equal  to 
his  own ;  he  knows  cause  and  effect  too  well. 
He  spoke  representatively  to  the  Joneses  elected 
as  we  indicated,  to  the  galleries,  and  to  the  de- 
voted but  unreasoning  pressure  behind.  He 
knew  their  prejudices,  and  he  carried  his  men 
with  him,  defeating  John  A.  Andrew,  who  was 
one  of  the  few  American  politicians  with  a 
statesmanlike  comprehension.  No  man  yet  ever 
questioned  the  sincerity  of  his  character. 

There  is  no  difference  of  opinion  between 
Andrew,  Miner,  or  the  writer  on  intemperance, 
the  evils  of  intemperance,  and  the  desirability 
of  limiting  drink  and  the  facilities  for  drinking 
to  the  lowest  minimum  society  will  undertake 
in  good  faith  and  maintain  effectually.  The 
difference  is,  that  some  of  us  think  there  is  such 
5* 


106  PROHIBITORY  LIQUOR  LAW. 

a  thing  as  temperance  in  the  use  of  liquors ;  that 
the  habits  of  society  show  this,  and  that  it  ought 
to  be  recognized  positively  in  the  law  ;  that  the 
law  should  make  legal  what  is  a  gross  and  open 
matter  of  fact,  that  the  illegality  should  be  con- 
fined to  abuse  in  drinking,  and  to  criminal  abuse 
of  the  drinker,  by  the  seller  or  by  anybody  else. 
Now  these  differences  of  opinion  are  based  on 
facts,  or  they  are  not.  If  they  are  difference 
of  fact,  no  amount  of  screaming  at  an  unchris- 
tian and  immoral  world,  no  calling  of  persons  by 
hard  names,  will  overcome  the  difference. 

If  teetotalisra  is  the  only  moral  basis ;  if  spir- 
ituous and  fermented  liquors  are  poisons,  like 
strychnine  and  arsenic  ;  if  sober  industry  never 
drinks  ;  if  to  drink  at  all  is  unscriptnral  and  un- 
christian ;  if  the  great  majority  of  Massachusetts 
people,  in  view  of  such  plain  truths,  had  made 
up  their  minds  not  to  drink  at  all,  why,  in  tlie 
name  of  reason,  did  not  such  a  moral  j^o^^'er 
show  itself  in  the  daily  average  life  of  the 
people  of  the  State  ? 

If  only    "  rich  voluptuaries,"  "  imbruted   ig- 


THE   GROUNDS   OF  PROHIBITION.     107 

norance."  and  a  few  "  godly  men  in  error " 
were  on  the  wrong  side  of  this  question,  what 
causes  can  exphiin  the  enormous  differences  of 
social  opinion  and  social  action  in  the  matter? 
An  arf^ument  of  this  sort  must  sustain  itself  on 
all  sides,  or  it  topples  over  the  sooner  for  the 
extra  weight  on  one  side.  If  these  assertions 
were  all  proofs,  and  the  proofs  had  their  foun- 
dation in  facts,  just  as  they  occur ;  that  is,  in  the 
facts  of  common  sense  and  common  experience, 
then  the  statute  would  work  itself  out  as  simply 
as  the  law  ag^ainst  stealins^.  According:  to  the 
Doctor's  theory,  and  to  frequent  statements  of 
abstinence  politicians,  the  whole  country  portion 
of  Massachusetts  is  reduced  to  strict  temper- 
ance under  the  operation  of  the  law.  Only 
Boston  and  a  few  districts  in  the  largest  towns 
dare  to  sell  any  liquors  under  these  prohibitory 
statutes,  they  sa}^  "  The  valuation  of  Boston 
is  stated  by  Hon.  Otis  Clapp  at  $415,000,000, 
and  the  liquor  interest  at  $40,000,000.  John 
Glancy  (who  he  is  I  don't  know),  at  the  liquor- 
dealers'  meeting,  placed  the  sum  at  $90,000,000 


108  PROHIBITORY  LIQUOR  LAW. 

to  $100,000,000.  I  think  the  valuation  con- 
firms the  last  statement."  ^  If  only  the  consoli- 
dated wealth,  "  ex-governors,"  and  the  lowest 
orders  of  society  have  any  interest  in  the  sale 
of  liquors,  how  is  this  immense  sum  employed  ? 
Are  fifty  to  one  hundred  millions  of  capital 
briskly  occupied  in  pouring  liquors  into  Boston, 
with  the  few  large  centres  noticed  and  the 
small  reservoirs  in  Vermont  and  New  Hamp- 
shire, where  similar  laws  prevail  ?  Connecticut 
and  Rhode  Island  draw  their  supplies  from  New 
York ;  and  Maine  must  be  left  out  of  the  ac- 
count, for  have  we  not  been  assured  that  she  is 
completely  converted  and  sobered  under  the 
blessings  of  her  own  original  law  ?  Verily,  there 
is  less  "sober  industry"  in  Massachusetts  than 
we  had  all  supposed,  or  else  this  sober  clement 
of  society  sometimes  drinks,  and  helps  to  employ 
this  large  aggregation  of  capital,  —  a  kind  of 
capital  which  turns  itself  faster  than  any  other 
in  commerce,  and  makes  the  quickest  j)0ssible 
returns  of  traffic. 

1  Argument,  p.  77. 


THE  GROUNDS  OF  PROHIBITION.     109 

Boston  transacts  a  large  business  of  all  sorts ; 
and  here  it  is  shown  that  more  than  ten  per 
cent  of  her  whole  property  is  employed  in  a 
traffic  which,  according  to  prohibitory  advo- 
cates, is  carried  on  with  the  outlaws  and  crimi- 
nals of  society,  men  wdro  have  no  rights  under 
the  law.  Evidently  there  is  a  mistake  some- 
where, and,  as  we  think,  it  lies  in  this  wilful 
perversion  of  the  facts.  Good  men  exhaust 
their  moral  energy  in  obtaining  impracticable 
statutes,  and  then  shut  their  eyes  to  the  plain 
fact  that  they  are  broken  at  every  corner.  At 
best  they  institute  temporary  spurts  of  prohib- 
itory energy,  wdiich  drive  the  corner-breakers 
into  secret  retreats  until  the  overstrained  ener- 
gies of  the  prosecutors  relax,  when  they  come 
out  into  daylight  again.  These  figures  prove 
the  position  taken  in  our  next  chapter,  viz., 
that  one  strong  feature  of  these  statutes  as  law 
is,  that  they  are  so  easily  broken.  Fifty  to  one 
hundred  millions  of  capital  are  accumulated ; 
and  the  observation  of  a  child  for  any  period 
of  six  months  proves  that  this  sum  is  not  idle. 


110  PROHIBITORY  LIQUOR  LAW. 

The  possessors  of  this  immense  force  are  satis- 
fied in  its  profitable  emploj^ment,  or  they  would 
not  keep  in  the  same  traffic,  turning  hither  and 
tliither  with  new  expedients  as  the  legislators 
and  prosecutors  devise  new  methods  in  pursuit. 
Just  as  the  hare  doubles  away  from  his  pursuers, 
except  that  the  pursuing  law  goes  Avith  soft  and 
easy  feet,  while  the  escaping  liquor-seller  has 
the  sharp  teeth  and  desperate  grasp  of  the  hound. 
We  complain  of  their  rapacious  character  as  a 
class.  When  and  where  were  outlaws  other 
than  rapacious,  and  who  makes  these  men  into 
outlaws  ? 

Those  who  think  unwise  laws  can  be  sus- 
tained by  the  moral  sense  alone  should  con- 
sider the  old  revenue  laAVS  of  England.  These 
statutes  grew  weaker  and  weaker  in  enforce- 
ment until  nearly  all  the  brandies,  silks,  and 
other  articles  of  high  value  were  smuggled 
from  the  continent,  and  freely  hawked  about 
the  streets  of  London  at  such  prices  that  every 
one  could  see  the  fact.  The  evil  grew  into 
such  proportions  that  a  Whig  leader,   making 


THE  GROUNDS   OF  PROHIBITION.     Ill 

a  speech  on  revenue  laAvs,  drew  an  illicit  pon- 
gee from  his  pocket,  flourished  it,  like  a  flag 
of  defiance,  over  the  house  of  commons,  and 
absolutely  blew  his  nose  in  the  face  of  the 
law-makers "  of  the  realm.  It  was  the  signal 
for  the  death  of  the  unwise  system ;  and  well- 
adjusted  duties  soon  sent  the  silk  handkerchiefs 
through  the  customs  and  the  smugglers  into 
honest  industry.  Did  the  Whig  statesman 
break  the  law?  Technically,  we  must  allow 
that  he  did  ;  but  in  the  better  use  of  law  and 
statesmanship  he  did  right  when  he  showed 
in  open  daylight  the  shams  of  society  and  the 
inconsistency  of  the  law. 

We  must  invite  notice  just  here  to  some 
remarks  of  De  Tocqueville  on  the  influences 
which  help  "  to  mitigate  that  tyranny  of  the 
majority  "  which  he  dreaded:  — 

"  It  must  not,  moreover,  be  supposed  tliat  the 
legal  spirit  is  confined,  in  the  United  States,  to 
the  courts  of  justice;  it  extends  far  beyond  them. 
.  .  .  The  Americans,  who  have  made  so  many 
innovations  in  their  political  laws,  have  introduced 


112  PROHIBITORY  LIQUOR  LAW. 

very  sparing  alterations  in  their  civil  laws,  and 
that  with  great  difficulty,  although  many  of  these 
laws  are  repugnant  to  their  social  condition.  The 
reason  of  this  is,  that,  in  matters  of  civil  law, 
the  majority  are  obliged  to  defer  to  the  authority 
of  the  legal  profession ;  and  the  American  law- 
yers are  disinclined  to  innovate  when  left  to  their 
own  choice.  .  .  .  Their  (^.e.,  the  judges')  influence 
extends  far  beyond  the  limits  of  the  courts ;  in 
the  recreations  of  private  life  as  well  as  in  the 
turmoil  of  public  business,  in  public  and  in  the 
legislative  assemblies,  the  American  judge  is  con- 
stantly surrounded  by  men,  who  are  accustomed 
to  regard  his  intelligence  as  superior  to  their 
own."  —  Dtmocracy  in  America^  I.,  357,  366. 

We  should  hardly  expect  the  prohibitory 
law-makers  to  take  this  high  view  of  the  office 
and  influence  of  lawyers.  As  a  class,  they 
do  not  recognize  the  proper  province  of  this 
profession,  looking  on  it  as  a  sort  of  necessary 
evil,  and  not  a  natural  outgroAvth  of  civiliza- 
tion. Civil  life  has  produced  law  and  law- 
yers, and  they  are  bulwarks  of  liberty  as  well 
as  of  good  morals.  We  should  expect  that  in 
arguing  for  a  law  the  prohibitory  men  would 


THE  GROUNDS  OF  PROHIBITION.     113 

produce  iill  the  legal  authority  they  could 
muster ;  accordingly,  we  looked  for  some  abso- 
lute opinion  that  the  prohibitory  statutes  are 
good  law  through  and  through  ;  but,  as  stated 
in  the  analysis,  we  failed  to  discover  it.  They 
had  eminent  lawyers  on  the  stand,  but  could 
only  get  such  semi-patriarchal,  semi-legal  ex- 
pressions as  these :  "  If  the  prohibitory  law 
could  be  executed  so  as  entirely  to  suppress 
drunkenness,  without  any  evil  to  the  community 
from  the  absence  of  the  means  of  drunken- 
ness," he  was  "not  prepared  to  say  that  a 
prohibitory  law  might  not  be  a  subject  of  legis- 
lation, without  regarding  the  sale  and  use  of 
intoxicating  beverages  as  especially  sinful."  — 
Hon.  Joel  Parker?- 

Hon.  Emory  Washburn  would  "  sustain  the 
present  law  and  prohibit  the  sale  of  liquor 
if  he  could  ;  and  if  it  should  be  carried  out, 
he  would  go  the  whole  length  of  the  mat- 
ter." 2 

None  of  these  learned  and  wise  men  Avould 

I  Miner,  Argument,  p.  83.  ^  Argument,  p.  84. 

H 


114  PROHIBITORY  LIQUOR  LAW. 

say  the  law  is  good  law,  though  they  evidently 
meant  to  throw  their  social  influence  on  the 
side  of  temperance,  and  even  of  prohibition, 
if  this  could  be  made  practicable.  They 
were  waiting,  in  the  same  posture  the  courts  of 
law  were  in,  until  society  should  show  itself 
in  earnest  either  to  stop  drinking  and  selling 
liquors  or  else  to  give  up  an  impossible  under- 
taking. No  one  who  has  studied  social  devel- 
opment and  social  law  supposes  the  question 
will  remain  in  such  perplexing  doubt  for  all 
time. 

To  understand  the  guarded  statements  of 
these  lawyers,  we  must  consider  the  nature  of 
the  statutes  themselves  :  — 

"The  seizure  clause,  Judge  Sanger  says,  is  the 
most  efficient  instrumentahty  of  the  law,  and  with 
which  there  is  no  difficulty  whatever  in  the  exe- 
cution of  the  law.  Whether  the  jury  agree  or  dis- 
agree, the  liquors  are  liehl,  in  which  case  they 
are  practically  confiscated;  and  if  the  dealer  lays 
in  another  stock,  that  stock  may  also  be  seized."  ^ 

This  would  be  cool  talk  for  the   emperor  of 

1  Argument,  p.  87. 


THE  GROUNDS  OF  PROHIBITION,     115 

all  the  Russias  to  utter,  whatever  people  may 
think  of  it  in  this  latitude.  But  these  New 
England  States  maintain  the  strongest  govern- 
ment the  world  has  ever  known :  it  can  stand  a 
great  deal  of  imprudence  and  unwisdom.  The 
law^jers  do  not  hold  tliat  arbitrary  power  can 
never  be  exercised  for  social  purposes.  It  is  one 
of  the  nice  questions  of  social  order  when  it  is 
to  be  exercised,  and  then  it  must  be  used  in  the 
least  possible  amount ;  above  all,  it  must  be  ef- 
fective. A  captain  is  allowed  to  cut  away  his 
mast  only  in  extreme  peril,  and  because  it  is 
an  aggravation  of  the  immediate  danger.  He 
proceeds  at  once  to  replace  it.  The  institutions 
these  arbitrary  statutes  endanger,  viz.,  the  right 
of  property,  trial  by  jury,  pure  testimony,  gen- 
eral respect  for  law,  &c.,  are  to  society  as  the 
masts  and  rigging  are  to  a  ship.  To  attempt  to 
run  good  morals  by  breaking  or  impairing  these, 
is  as  wise  and  proves  to  be  as  effective  as  it 
would  be  to  sail  a  ship  into  safety  by  cutting 
away  masts  and  supports. 

It  is  worth  while  to  cite  from  Mill  the  state- 


116  PROHIBITORY  LIQUOR  LAW. 

ment  of  the  Secretary  of  the  British  Temper- 
ance Alliance  in  his  letter  to  Lord  Stanley  :  — 

"If  any  thing  invades  my  social  rights^  certainly 
the  traffic  in  strong  drink  does.  It  destroys  my 
primary  right  of  security,  hy  constantly  creating 
and  stimulating  social  disorder.  It  invades  my 
right  of  equality,  by  deriving  a  profit  from  the  crea- 
tion of  a  misery  I  am  taxed  to  support.  It  impedes 
my  right  to  free  moral  and  intellectual  develop- 
ment, by  surrounding  my  path  with  dangers,^  and 
by  weakening  and  demoralizing  society,  from  which 
I  have  a  right  to  claim  mutual  aid  and  intercourse." 

Mill  replies :  — 

"  A  theory  of  social  rights,  the  like  of  which  prob- 
ably never  found  its  way  into  distinct  language, — 
being  nothing  short  of  this,  that  it  is  the  absolute 
social  right  of  every  individual  that  every  other 
individual  shall  act  in  every  respect  exactly  as  he 

1  We  believe  if  tlie  abstinence  reformers,  to  whose  noble  qual- 
ities we  have  paid  grateful  respect,  only  had  a  little  sense  of  the 
humorous,  they  would  see  the  fatal  inconsistency  of  many  of 
their  jwsitions  and  efforts.  This  preposterous  issue  can  only 
be  met  by  a  joke.  The  writer  lias  a  weakness  for  warm 
stewed  lobsters  at  supper,  yet  he  is  pretty  sure  of  a  ni;?htniare 
if  he  indulges  the  appetite.  Now,  if  we  should  gravely  under- 
take a  crusade  against  the  lobster-dealer  for  surrounding  our 
path  with  dangers,  &c.,  would  it  not  be  funny  ? 


THE  GROUNDS  OF  PROHIBITION.     117 

ought ;  that  whosoever  fails  thereof  in  the  smnllest 
particiUar  violates  my  social  right,  and  entitles  me 
to  demand  from  the  legislature  the  removal  of  the 
grievance.  So  monstrous  a  principle  is  far  more 
dangerous  than  any  single  interference  with  liberty : 
there  is  no  violation  of  liberty  which  it  would  not 
justify." 

It  is  hardly  worth  while  to  discuss  Miner's 
counter-argument,  that  as  truant  children  are 
restrained  and  educated,  obscene  books  prohib- 
ited, &c.,  so  social  rights  are  established,  and 
liberty  restrained  at  the  will  of  society.  Minds 
which  can  see  no  difference  between  truancy 
and  the  right  of  an  individual  to  drink,  with  a 
consequent  right  to  purchase  liquors,  will  legis- 
late blindly ;  they  will  not  stop  at  distinctions. 
Mr.  Mill  and  the  secretary  embody  some  of  the 
most  important  social  issues  in  their  two  state- 
ments, and  the  writer  can  add  nothing  to  the 
complete  refutation  the  philosopher  gives  the 
reformer.  People  who  think  with  the  secre- 
tar}^  look  on  a  statute,  having  a  good  moral  in- 
tention once  established  by  a  majority  vote,  as 
having  the   same  force   as  a  law  of  God ;    no 


118  PROHIBITORY  LIQUOR  LAW. 

matter  how  it  is  executed,  if  the  intention  of 
the  makers  was  good,  then  the  statute  is  a  part 
of  the  great  moral  scheme  of  the  Almighty  gov- 
ernment. This  applies  to  social  and  moral  law 
much  the  same  principle  which  the  Roman  ec- 
clesiastics executed  upon  Copernicus  with  his 
physical  laws.  As  the  statutes  of  the  church 
were  established,  then  it  was  a  law  of  God  that 
the  solar  system  could  not  move.  As  Mill 
indicates,  the  province  of  law  is  to  work  out 
ordinary  social  life  with  least  oppression  to  the 
individual.  Perfect  government  is  for  God 
alone,  and  God's  laws,  whatever  be  the  theory 
of  their  transmission,  establish  themselves  in 
the  human  soul  through  means  of  their  own  — 
that  is,  in  kind,  —  and  not  by  mere  majority 
votes. 

While  we  are  treating  with  the  prohibitionists 
on  their  own  grounds,  let  us  consider  their 
methods  of  administration  :  — 

"Mr.  Frank  Edson,  ngcnt  of  the  town  of  ITadley, 
testified  that  hquor-drhiking  was  on  the  increase, 
and  that  clubs  had  sprung  up  in  neighboring  towns, 


THE  GROUNDS  OF  PROHIBITION.     119 

instancing  Northampton.  It  appeared,  on  cross- 
examination,  that  he  was  not  a  total  abstainer,  that 
he  had  joined  one  of  the  objectionable  clubs  at 
Northampton,  and  that  liquors  were  drank  in  that 
club.  1  submit  that  such  testimony  is  not  compe- 
tent. I  believe  that  men  who  come  up  here  and 
set  forth  the  evils  which  they  allege  grow  out  of 
the  law,  and  then  turn  around  and  confess  that  tliey 
are  aiding  and  fibetting  the  breaking  of  the  law 
themselves,  are  witnesses  whose  testimony  should 
be  received  with  great  caution."  ^ 

The  point  Dr.  Miner  has  under  consideration 
is  matter  of  fact,  as  to  whether  there  are  clubs 
or  not.  It  was  notorious  that  such  clubs  grew 
up  wherever  the  law  was  actuallj^  enforced. 
Now,  any  legal  or  governmental  expert  would 
hold  that  frank  testimony  like  the  above  should 
be  welcomed  in  any  practical  issue  of  govern- 
ment. A  man  who  was  manly  enough  to  con- 
fess his  own  knowledge  of  such  evil  practices 
would,  under  most  social  systems,  be  encour- 
aged if  he  was  telling  the  truth.  The  point  to 
be  ascertained  was  whether  the  law  made  temp- 
tations which  hurt  the  "  public  welfare,"  as 
1  Argument,  100. 


120  PROHIBITORY  LIQUOR  LAW. 

Paley  has  it.  If  no  one  could  tell  tlie  truth  but 
a  man  wlio  totally  abstained,  then  society  was 
at  low  ebb,  for  those  were  few,  as  we  have 
shown.  Few  persons  would  treat  their  own 
sons  in  this  way,  if  they  were  bearing  testimony 
as  to  the  working  of  laws  the  parents  had  set 
over  them.  Probably  the  Joneses  elected  by 
coalitions  took  heed  and  '-'"  spotted  "  all  the  Ed- 
sons  and  similar  men ;  but  was  the  town  of 
Hadley,  though  it  might  receive  a  new  liquor 
agent,  benefited  by  this  snubbing  of  a  man  who 
tried  to  tell  the  truth  ? 

We  have  dwelt  upon  this  point,  because  it 
illustrates  much  of  the  prohibitory  method  both 
in  argument  and  in  practical  administration. 


PROHIBITION  AND  REGULATION.     121 


PROHIBITION  AND   REGULATION. 


'T^HE  use  of  liquors  sliould  be  regulated  and 
the  abuse  prevented  so  far  as  possible. 
The  traffic  is  dangerous,  but  is  none  the  less 
necessary.  The  prohibitionists  have  always 
treated  their  various  statutes,  forbidding  the 
sale  of  alcoholic  liquors,  as  if  they  were  mere 
rules  for  the  good  order  of  society.  All  societies 
make  laws  to  promote  the  health  of  their  peoples, 
and  to  stop  nuisances  or  hurtful  influences.  No 
society  or  legislature  has  ever  declared  alcoholic 
liquors  to  be  absolutely  hurtful,  nor  has  gone 
so  far  as  to  make  the  use  and  sale  of  liquors  a 
nuisance  in  theoretical  principle.  This  course 
would  have  brought  the  reformers  against  the 
rocks  of  positive  law,  and  they  must  take  an- 
other direction.  Accordingly,  they  admit  the  sale 
6 


122  PROHIBITORY  LIQUOR  LAW, 

under  certain  narrow  restrictions,  which  must 
save  the  whole  process  from  its  conflict  with  posi- 
tive law.  Then  they  proceed  to  cut  off  the  sale 
of  liquors  as  beverages,  without  establishing  the 
fact  that  they  are  not  beverages*  legally  con- 
sidered. In  vicAv  of  the  facts  of  experience,  and 
of  the  common  habits  of  the  society  legislated 
for,  is  this  in  any  fair  sense  a  regulation  of  a 
traffic  ? 

In  debating  the  true  meaning  of  a  law  or 
a  custom,  it  is  well  to  look  into  the  words 
themselves  which  divide  the  issues.  Words 
are  more  than  names ;  they  are  the  moulds 
into  wliich  fluid  ideas  cast  themselves.  When 
the  idea  deca3^s,  the  word  is  either  dropped 
out  of  use  or  becomes  the  ready-made  shell 
for  another  idea  kindred  to  it.  Webster  and 
Worcester  define  the  word  "  prohibition "  in 
terms  nearly  identical,  —  "An  interdiction;  a 
forbiddance."     They  both  quote  in   exposition 

1  "  That  spirituous  and  intoxicating  liquors  were  still  prop- 
erty, notwithstanding  this  act  (Maine  Law  in  Rhode  Island), 
is  certain." — B.  R.  Curtis,  Circuit  Court  Reports,  p.  328. 


PROHIBITION  AND   REGULATION     123 

from  Tillotson,  viz. :  "The  law  of  God  in  the 
Ten  Commandments  consists  mostly  of  iiro- 
luhitions ;  thou  shalt  not  do  such  a  thing." 
Let  us  look  at  tlie  synonyms  for  regulate. 
"  To  direct,  as  applied  to  the  administration 
of  affairs,  is  more  authoritative  than  to  con- 
duct, while  conduct  is  more  active  or  oper- 
ative. Regulate  stands  midway  between."  ^ 
Is  there  any  actual  correspondence  or  kindred 
a!:^reement  between  these  two  terms  ?  The 
first  word  embodies  the  power  of  direct,  posi- 
tive law,  that  portion  of  it  which  lies  deepest 
in  us.  "  The  whole  or  a  portion  of  the  laws 
set  by  God  to  men  is  frequently  styled  the 
law  of  nature,  or  natural  law ;  being,  in 
truth,  the  only  natural  law  of  which  it  is 
possible  to  speak  without  a  metaphor,  or 
without  a  blending  of  objects  which  ought 
to  be  distinguished  broadly.  But,  rejecting 
the  appellation  '•  law  of  nature '  as  ambig- 
uous aud  misleading,  I  name  those  laws  or 
rules,  as   considered  collectively  or  in  a  mass, 

1  Synonyms  Discriminated.     By  C.  J.  Smith. 


124  PROHIBITORY  LIQUOR  LAW. 

the  Divine  laiu,  or  the  Icm  of  God.'''  ^  There  is 
the  root  of  prohibition,  which  old  Tillotson 
found  out;  the  tables  of  stone  brought  these 
strong  bonds  of  order  down  to  us ;  let  any 
legislator  beware  of  trifling  with  these  divine 
laws. 

A  statute,  in  order  to  base  itself  on  this 
strong  and  divine  foundation,  should  carry 
with  it  the  imperative  moral  sense,  the  over- 
whelming accord  of  the  society  enacting  it, 
and  at  the  time  of  its  enactment.  We  might 
draw  many  interesting  illustrations  from  the 
history  of  American  slavery,  but  let  us  take 
simpler  experience.  Suppose  a  village  owned 
a  public  square,  around  which  some  of  the 
villagers  wished  to  play  base  ball.  Before 
any  statute  could  be  made,  a  very  large 
majority  must  agree  whether  they  would  play 
ball  at  all.  If  there  was  a  public  discus- 
sion to  settle  the  principles  of  ball  playing, 
as  to  whether  a  ball  properly  made,  prop- 
erly handled,  would    or  would   not   break    the 

1  Austin's  Jurisi)rudence.     Ed.  1873.     I.  88. 


PROHIBITION  AND  REGULATION.     125 

windows  exposed,  would  or  would  not  break 
the  thumbs  of  players,  would  or  would  not 
break  the  heads  of  little  boys,  the  results  could 
not  be  embodied  in  a  statute  until  certain  defi- 
nite principles  were  settled.  Before  they  could 
regulate  ball  playing  so  that  the  minority 
would  not  be  oppressed,  society  as  a  whole, 
not  a  mere  majority,  must  decide  the  main 
question  whether  they  would  play  ball  at 
all,  where  the  public  had  common  rights.  A 
statute  to  police  the  operation  would  effect 
little  while  property-owners  had  rights  which 
the  discussion  could  not  touch.  This  is  an 
illustration,  and  not  a  parallel.  Balls  do  not 
mean  whiskey,  nor  bats  the  clubs  which  ruf- 
fians use  to  knock  over  temperance  law-makers ; 
we  are  only  trying  to  make  the  above  state- 
ment clear. 

Again  ;  hardly  any  sane  person  would 
think  of  making  a  statute  at  this  day  to  stop 
the  sale  of  playing-cards,  whatever  his  own 
opinion  of  cards  might  be.  He  might  reg- 
ulate the  sale  by  any  restriction  utility  might 


126  PROHIBITORY  LIQUOR  LAW. 

demand.  He  would  forbid  their  sale  to  mi- 
nors, or  sale  for  use  in  gambling,  or  un- 
dertake any  such  method  which  could  be 
established  judiciously.  But  fift}^  to  one  hun- 
dred years  ago,  in  New  England,  a  law  pro- 
hibiting the  sale  would  have  found  ready 
obedience.  Playing-cards  have  not  changed, 
nor  has  New  England  lost  its  reverence  for 
law  meanwhile.  But  the  attitude  of  society 
toward  amusements  has  changed  largely.  To 
the  old  Puritan,  any  game  of  chance  was  an 
offence  against  the  law  of  God ;  he  would  pro- 
hibit cards  totally.  Playing-cards  in  the  modern 
view  (which  sustains  a  statute  against  gam- 
bling) carry  with  them  elements  of  evil,  yet 
society  will  not  cut  itself  off  from  their  use 
because  gamblers  abuse  them. 

These  prohibitory  statutes  can  have  only  one 
place  in  the  system  of  civilized  law  :  this  system 
divides  itself  into  three  classes  :  — 

"  The  first  comprises  the  laws  (properly  so 
called)  which  are  set  by  God  to  his  human  creat- 
ures. 


PROHIBITION  AND  REGULA  TION     127 

*'  The  second  comprises  the  laws  (properly  so 
called)  which  are  set  by  men  as  political  superi- 
ors, or  by  men,  as  private  persons  in  pursuance 
of  legal  rights. 

''  The  third  comprises  laws  of  the  two  follow- 
ing species  :  1.  The  laws  (properly  so  called) 
which  are  set  by  men  to  men,  but  not  by  men 
as  political  superiors,  nor  by  men  as  private  per- 
sons, in  pursuance  of  legal  rights.  2.  The 
laws  which  are  closely  analogous  to  laws  proper, 
but  are  merely  opinions  or  sentiments  held  or 
felt  by  men  in  regard  to  human  conduct. 

"  I  name  laws  of  the  first  class  the  law  or  laws, 
of  Grod^  or  tlie  Divine  law  or  lawB. 

"  For  various  reasons,  which  I  shall  produce 
immediately,  I  name  laws  of  the  second  class 
'positive  law^  ov  positive  laws. 

"  For  the  same  reasons,  I  name  laws  of  the 
third  class  positive  morality,  rules  of  positive 
morality^  or  positive  moral  rules.  .  .  . 

"  The  name  morality^  when  standing  unquali- 
fied or  alone,  may  signify  the  human  laws, 
which  I  style  positive  morality,  as  considered 


128  PROHIBITORY  LIQUOR  LAW. 


without   reference   to   their   goodness    or  bad- 


ness. 


"  1 


These  liquor  statutes  fall  under  the  second 
division  of  the  third  class :  they  are  analogous 
to  laws  proper,  but  are  merely  legal  formulas 
for  carrying  into  effect  the  opinion'^  or  senti- 
ments held  or  felt  by  men  in  regard  to  human 
conduct.  Or,  as  we  said  on  another  occasion, 
they  formulate  the  sentimental  consciousness  of 
the  majority  into  a  statute  which  shall  attempt 
to  make  morals  for  the  minority. 

Mr.  Austin  2  does  not  state,  nor  do  we  mean 
to  claim  through  him,  that  a  statute  under  this 
class  is  necessarily  bad  law.  We  admit  that  if 
the  great  mass  of  society  were  totally  abstinent, 
a  statute  against  the  sale  of  liquor  as  a  bever- 
agce  mi«:ht  be  maintained  as  an  administrative 
expedient.  There  would  then  be  an  efficient 
"sanction"    of   the   law,    as    the   jurists'   term 

1  Austin's  Jurisprudence,  I.  pp.  174-176. 

2  We  believe  tlie  authority  of  Austin  is  not  disputed  in  the 
main  principles  of  jurisprudence.  John  Stuart  Mill  says  of  him  : 
"  He  accomplished  through  life  little  in  comparison  with  -vvhat 
he  seemed  capable  of;  but  what  he  did  produce  is  held  in  the 
very  highest  estimation  by  the  most  competent  judges." 


PROHIBITION  AND  REGULATION.     129 

runs.^  The  fact  that  it  would  be  so  easily  main- 
tained would  almost  make  it  unnecessary.  We 
do  not  need  a  statute  against  killing  to  quicken 
our  moral  sense  of  crime.  We  need  it  to  catch 
the  murderer,  and  hang  or  imprison  him.  The 
sanction  of  the  law  is  anterior  to  it,  and  is  not 
created  by  it.  If  people,  or  the  great  majority 
of  people,  did  not  deske  to  drink,  then  it  would 
be  easy  to  control  the  selling  of  liquor.  Prohi- 
bition or  regulation  would  then  adjust  itself  to 
the  positive  morality  of  the  law,  which  would 
become  moral  in  the  true  sense,  in  that  it  would 
embody  the  best  conviction  of  society.  But 
to  make  the  seller  a  criminal  while  the  drinker 
commits  no  crime  in  drinking,  is  a  legal  absurd- 
ity, which  the  common  sense  of  the  community 
has  detected,  as  their  average  conduct  shows. 
Compare  Burke,  III.  319:  — 

^  "  The  object  of  this  law  does  not  appear  to  be  so  much 
*  for  the  suppression  of  drinking-houses  and  tippling-shops/  as 
its  title  would  seem  to  import,  as  for  the  destruction  of  intoxi- 
cating liquors  —  because  they  may  be  injurious  to  the  commu- 
nity. The  main  principle  of  all  these  statutes  is  the  same. 
The  later  ones  are  changed  only  in  details."  —  Curtis,  Circuit 
Court  Reports,  p.  337. 

6*  I 


ICO  PROHIBITORY  LIQUOR  LAW. 

*'  No  other  given  part  of  legislative  rights  can  be 
exercised,  without  regard  to  the  general  opinion  of 
those  who  are  to  be  governed.  That  general  opinion 
is  the  vehicle  and  organ  of  legislative  omnipotence. 
Without  this,  it  ma}-  be  a  theory  to  entertain  the 
mind,  but  it  is  nothing  in  the  direction  of  affairs.  .  . 
In  effect,  to  follow,  not  to  force,  the  public  inclina- 
tion ;  to  give  a  direction,  a  form,  a  technical  dress, 
and  a  specific  sanction  to  the  general  sense  of  the 
community,  is  the  true  end  of  legislature." 

Failing  in  this  moral  sanction,  the  prohibi- 
tionists substitute  the  pressure  of  a  majority 
vote,  and  the  feeling  which  the  evils  of  intem- 
perance always  excite  in  any  humane  person. 
Now,  both  these  principles  are  powerful  in  their 
legitimate  sphere,  but  neither  one  can  enforce 
a  statute  law  unless  it  be  sustained  by  other 
powerful  influences,  which  combined,  make  up 
even  justice.  Here  is  an  appetite  which  is 
common,  nay,  well-nigh  universal.  Stimulants 
are  used  from  the  poles  to  the  equator,  —  a  fun- 
gus in  Siberia ;  betel  and  bhang  or  hemp  in 
Asia  ;  ava  in  Polynesia  ;  fermented  mare's  milk 
in  Russia,  where  it  is  too  cold  for  vegetable  fer- 


PROHIBITION  AND  REGULATION.    131 

mentations;  mate  in  South  America;  coca  leaf 
in  Peru;  tea,  coffee,  tobacco,  opium,  alcoholic 
and  fermented  liquors  in  all  quarters  of  the 
earth :  all  these  attest  a  desire,  a  craving  for 
stimulants,  which  is  more  than  cosmopolitan ; 
it  is  human.  A  portion  of  the  people  in  one 
country  assert  that  this  desire  is  injudicious  and 
harmful.  They  prohibit  all  sale  of  alcoholic 
stimulants,  articles  desired  by  the  larger  half 
of  the  community,  because,  as  they  say,  the 
state  should  not  allow  rum  sellers  to  make  pau- 
pers and  criminals.  The  evidence  is  no  more 
certain  that,  a  pauper  or  criminal  will  be  made 
when  a  man  buys  a  glass  of  beer  or  whiskey, 
than  it  is  certain  when  a  person  buys  a  rope 
that  he  will  hang  himself.  Neither  a  majority 
vote  nor  a  moral  sentiment  will  chang^e  this 
essential  principle,  and  make  the  gratification 
of  a  natural  appetite  into  a  crime  against  the 
state.  There  are  two  courses  open  to  the  mor- 
alists. Either  remove  the  desire  from  individ- 
uals, or  take  control  of  the  traffic  and  gratify 
the  desire  in  its  minimum.     Imperial  or  Papal 


132  PROHIBITORY  LIQUOR  LAW. 

Rome  themselves  could  not  make  a  third  course 
possible.  If  the  legal  traffic  is  absolutely  sup- 
pressed while  the  appetite  remains,  it  merely 
runs  into  illicit  channels,  as  we  have  shown. 

An  absolute  proof  of  the  exceptional  and  un- 
natural character  of  prohibition  is  afforded  by 
its  success  in  those  rare  cases  where  it  has  suc- 
ceeded. For  example,  during  the  great  Boston 
fire  it  was  easy  to  close  all  liquor  shops  and  stop 
the  sale  effectively  for  some  days.  This  was  a 
despotic  measure,  made  reasonable  by  the  ex- 
traordinary occasion ;  therefore  everybody,  sell- 
ers and  drinkers,  generally  acquiesced.  "  In 
the  midst  of  arms  the  laws  are  dumb."  Law, 
in  its  nature,  must  be  fitted  to  the  common  liv- 
ing of  the  people. 

"Yet,  though  hot  waters  be  good  to  be  given  to 
one  in  a  swound,  tliey  will  burn  liis  heart  out  who 
drhiks  them  constantly  when  in  health.  Extraor- 
dinary courses  are  not  ordinarily  to  be  used,  but 
when  enforced  by  absolute  necessity."  —  Fuller's 
Holy  State. 

As  men  are  constituted  to-day,  as  the  princi- 


PROHIBITION  AND  REGULATION     133 

pies  of  civilized  law  are  to-clay,  the  point  at 
issue  is,  has  a  person  a  right,  under  the  hiw, 
to  drink  a  glass  or  a  teaspoonful  of  alcoholic 
liquor  ?  If  he  has  that  right,  he  has  a  right  to 
buy  it,  and  if  the  state  interferes  to  regulate  the 
natural  traffic,  it  is  bound  to  furnish  reasonable 
means  for  the  gratification  of  the  buyer's  desire. 

If  a  man  offended  against  the  law  of  God  in 
drinking,  then  we  could  readil}^  bring  the  seller 
under  one  of  the  great  divisions  of  positive  law 
stated  above.  We  are  aware  a  few  abstinents 
take  ground  that  drinking  is  an  absolute  infrac- 
tion of  God's  laws,  i.e.,  by  interpretation  of 
Scripture.  Let  them  prove  it,  and  the  liquor 
statutes  will  mend  themselves  very  quickly. 

To  aggravate  the  results  of  contingent  crimes 
does  not  raise  the  tone  of  the  community  either 
morally  or  according  to  positive  moral  law. 
To  maintain  the  moral  tone  of  society  in  Eng- 
land, only  a  short  time  since,  they  thought  it 
necessary  to  transport  a  pett}^  thief,  or  even  to 
put  him  to   death.i     The  practical  result  was, 

1  It  was  not  until  1811  that  Romilly  procured  the  repeal  of 


134  PROHIBITORY  LIQUOR  LAW. 

tliat  there  were  more  and  woi*se  hardened  crim- 
inals ;  society  was  not  bettered  thereby.  This 
is  merely  an  evidence  of  the  bad  working  of 
moral  principles  in  unwise  laws.  By  construc- 
tively making  an  artificial  criminal  out  of  the 
liquor-dealer,  we  have  made  these  sellers  into 
a  hard  set  morally ;  we  have  not  helped  society, 
nor  the  positive  morality  of  the  law. 

If  these  things  be  so,  the  reader  naturally 
asks  how  could  the  laws  be  enacted  or  how 
sustained?  In  our  introductory  statement  we 
sketched  the  process  by  which  a  legislature  is 
made,  embodying  the  public  sentiment  which 
creates  these  statutes.  A  majority  is  thus  con- 
structed out  of  heterogeneous  and  inconsistent 
elements.  We  have  seen  its  method  of  work- 
ing and  the  results  it  produces  in  liquor  statutes. 
To  comprehend  the    dangerous  power   of  this 

tliese  cruel  statutes  ;  then  Lord  Ellenborough  opposed.  "  Steal- 
ing privately  in  a  shop  goods  to  the  value  of  five  shillings  or  in 
a  dwelling  to  the  value  of  forty  shillings  were  capital  fel- 
onies." Likewise  they  repealed  "  the  ridiculously  bloody  en- 
actment of  Elizabeth,  vvhicli  made  it  a  capital  offence  in  soldiers 
and  marines  to  be  found  wanxlering  about  the  realm  without  a 
pass." 


PROHIBITION  AND  REGULATION.     135 

majority,  let  us  heed  the  words  of  that  saga- 
cious and  friendly  observer,  De  Tocquevillc  :  — 

"  When  an  individual  or  a  party  is  wronged  in 
the  United  States,  to  whom  can  he  apply  for  re- 
dress ?  If  to  public  opinion,  pubUc  opinion  consti- 
tutes the  majority  ;  if  to  the  legislature,  it  represents 
the  majority,  and  implicitly  obeys  it ;  if  to  the  ex- 
ecutive power,  it  is  appointed  by  the  majority,  and 
serves  as  a  passive  tool  in  its  hands.  The  public 
force  consists  of  the  majority  under  arms;  the  jury 
is  the  majority  invested  with  the  right  of  hearing 
judicial  cases;  and  in  certain  States  even  the  judges 
are  elected  by  the  mnjority."  .  .  . 

"The  majority  possesses  a  power  which  is  physi- 
cal and  moral  at  the  same  time,  which  acts  upon  the 
will  as  much  as  upon  the  actions,  and  represses  not 
only  all  contest  but  all  controversy."  ^ 

A  power  thus  constituted  makes  a  statute, 
bringing  the  whole  power  of  civil  government, 
with  the  weapons  of  arbitrary  search  and  seizure, 
to  force  the  common  people  to  stop  buying 
liquors  for  beverages.  Arbitrary  prohibition,  to 
exist  with  free  institutions,  must  be  enforced 
in  the  common  living  of  freemen,  else  there  is 
1  Democracy  in  America,  I.  332,  337. 


136  PROHIBITORY  LIQUOR  LAW. 

tyranny  of  one  portion  of  the  people  over  an- 
other portion.  When  Mr.  Seward's  ^'  little  bell 
tinkled,"  every  thoughtful  person  shuddered, 
yet  he  thought  that  our  political  life  Avas  in 
imminent  peril,  and  he  submitted  to  this  arbi- 
trary stretch  of  power.  Had  Mr.  Seward  used 
this  privilege  in  any  police  service  or  matter  of 
regulation,  in  any  way  except  for  the  very  sal- 
vation of  national  political  life,  he  would  him- 
self have  been  "tinkled"  into  Fort  Warren. 

A  statute,  before  it  becomes  assured  law, 
must  pass  through  the  lower  and  higher  courts. 
They  consider  whether  it  is  prohibited  under 
the  constitution,  or  whether  it  conflicts  with 
other  provisions  of  constitutional  law  already 
established.  Finally,  they  consider  it  in  the 
light  of  the  great  principles  of  reason  and  jus- 
tice which  underlie  all  law.  In  fact,  these  liquor 
statutes  have  never  been  subjected  to  this  cru- 
cial test.  The  waves  of  moral  sentiment  have 
driven  the  statutes  forward  from  point  to  point, 
in  the  manner  De  Tocqueville  shows  the  major- 
ity have  power  to  do.     One  of  the  best  features 


PROHIBITION  AND  REGULATION.     137 

of  civilized  law  in  Anglo-Saxon  communities 
is  in  its  ability  to  adjust  itself  to  the  growing 
life  of  the  people.  The  courts,  rigid  and  formal 
as  they  are,  sympathize  with  ]3opular  feeling, 
and  reflect  it  faintly  in  their  conduct.  This 
was  illustrated  in  the  history  of  American  sla- 
very; the  coiu'ts  gradually  swayed  about  until 
they  made  into  law  the  political  action  of 
the  people.  Slavery  never  seemed  so  strong 
as  when  it  had  the  supreme  court  in  its  influ- 
ence, and  had  established  its  arbitrary  statutes 
under  the  law.  It  was  the  recoil  from  this 
tyranny  over  a  free  nation  which  sent  people, 
courts,  and  government  into  a  war  for  its  de- 
struction. The  courts  have  never  passed  on 
the  essential  features  of  these  arbitrary  statutes. 
They  have  been  disposed  to  push  the  policing 
power  of  the  law  to  its  extreme  limit,  in  order 
to  give  play  .to  the  sentiment  and  power  of  the 
majority  in  its  desire  to  suppress  intemperance. 
The  great  principles  of  positive  law  have  never 
yet  been  fully  applied  to  a  liquor  statute. 

Many  partial  and  unjust  laws  stand  on  a  like 


138  PROHIBITORY  LIQUOR  LAW. 

insecure  basis.  The  freedom  from  taxation  of 
church  property,  for  example,  is  believed  by 
good  authority  to  be  unconstitutional.  The 
matter  has  never  been  tried.  When  the  early 
meeting-houses  were  built,  that  seemed  the 
easiest  and  simplest  mode  of  establishing  public 
worship.  Gradually,  in  our  complex  civiliza- 
tion, it  is  growing  into  grave  abuse.  Probably, 
as  it  grows  worse,  it  will  antagonize  public  opin- 
ion until  the  courts  feel  the  pressure  and  abolish 
the  evil. 

Besides,  as  we  have  shown,  the  readiness  to 
be  violated  which  was  inherent  in  these  pro- 
hibitory statutes  gave  them  an  elasticity  of 
resistance  they  would  not  have  had  if  better 
executed.  The  lesions  and  breaks  they  con- 
stantly received  made  the  natural  legal  resist^ 
ance  less  violent.  Why  resist  in  the  courts  a 
law  which  was  so  easily  broken  in  detail? 
Few  liquor-dealers  Avould  pay  tens  of  thousands 
of  dollars  to  obtain  a  legal  privilege  of  selling 
when  they  were  making  hundreds  of  thousands 
by  selling  illicitly. 


PROHIBITION  AND  REGULATION     139 

"  It  is  of  great  importance  in  a  republic  not  only 
to  guard  the  society  against  the  oppression  of  its 
rulers,  but  to  guard  one  part  of  society  against  the 
injustice  of  the  other  part.  Justice  is  the  end  of 
government;  it  is  the  end  of  civil  society."^ 

Jefferson  said :  "  The  executive  power  in  our 
government  is  not  the  only,  perhaps  not  even  tlie 
principal,  object  of  my  solicitude.  The  tyranny 
of  the  legislature  is  really  the  danger  most  to 
be  feared,  and  will  continue  to  be  so  for  many 
years  to  come." 

These  are  not  the  shrieks  of  alarmists,  but 
the  grave  opinions  of  men  who  knew  the 
organization  of  this  American  society.  In  view 
of  this  imperial  power  of  the  majority,  with  its 
liability  to  abuse,  it  behooves  us  as  citizens 
to  consider  the  exact  relations  of  the  majority 
to  every  statute  which  they  enact. 

In  the  early  portion  of  this  chapter  we  re- 
marked that  a  prohibitory  and  penal  statute 
should  bring  to  its  execution  the  overwhelm- 
ing accord  of  society.  Perhaps  our  thought 
would  be  stronger  if  we  should  say  natural 
accord.  Nature  uses  two  forces  mainly  in  her 
1  Federalist,  51,  Jas.  Madison. 


140  PROHIBITORY  LIQUOR  LAW, 

operations  on  our  earth.  One  is  the  power 
of  Aveight,  we  call  gravitation,  and  the  other 
is  the  power  of  growth,  we  call  vital  force. 
A  gardener  lately  contrived  ingenious  appara- 
tus by  which  he  made  a  growing  squash  lift 
over  two  tons  of  weight.  The  simple  weight 
of  the  vegetable  might  be  a  hundred  pounds. 
It  is  this  vital  power  of  truth  and  justice 
which  gives  natural  force  to  the  decrees  of 
a  legislature.  The  majority  can  sit  down  with 
its  weight  wherever  it  pleases ;  it  can  gain  vital 
success  for  its  decrees  only  when  it  adjusts 
them  to  the  great  natural  laws  ingrained  in 
the  nature  of  man  himself. 

Law  must  be  considered  not  in  the  light 
of  theory,  but  of  common  usage.  Putting 
out  of  the  account  the  criminal  classes  and 
habitual  drunkards,  we  would  ask  the  reader 
what  proportion  of  his  friends  abstain  from  al- 
coholic liquors.  We  mean  by  abstention,  that 
it  be  in  practice  absolute.  You  may  apply  the 
medicinal  limit  at  one  point,  your  neighbor  at 
another;  but  the  expression  '^  total  abstinence*' 


PROHIBITION  AND   REGULATION.     141 

and  its  correlative  "  prohibition  "  are  as  strong 
as  language  can  make  tliem.  The  writer  has 
seen  decent  people  in  a  good  many  sections  of 
New  England,  and  he  has  never  yet  found  a 
community  where  one  person  in  every  three 
abstained  absolutely.  Now,  we  have  shown  that 
prohibition  is  not  regulation ;  that  it  has  been 
maintained  in  al)eyance  by  the  legal  authority, 
while  the  moral  force  of  society  might  work 
out  the  habits  and  ordinary  living  on  which 
any  sumptuary  statute  must  base  itself.  If 
this  change  of  living  comes  not,  then  the 
statutes  are  tyrannical.  It  is  hard  for  an 
American,  wrapped  in  party  toils,  hampered 
by  caucuses,  and  governed  by  politicians,  to 
comprehend  that  he  may  be  the  innocent  cause 
of  a  tyranny  such  as  Madison  so  forcibly  de- 
scribes. Yet  the  writer  believes  that  all  of 
■QS  are  implicated,  as  he  will  try  to   show. 

The  liquor  statutes,  viewed  in  a  large  sense, 
are  laws  for  sellers  and  drinkers  both,  —  for  you 
and  for  me.  Every  law  must  have  an  effective 
"  sanction." 


142     *     PROHIBITORY  LIQUOR  LAW. 

"  '  Command  '  and  '  duty  '  are,  therefore,  cor- 
relative terms.  .  .  .  The  evil  which  will  probal)ly 
be  incurred  in  case  a  command  be  disobeyed, 
or  (to  use  an  equivalent  expression)  in  case 
a  duty  be  broken,  is  frequently  called  a  sanc- 
tion.,  or  an  enforcement  of  obedience^  ...  a 
'punishment.  But  as  punishments,  strictly  so 
called,  are  only  a  class  of  sanctions,  the  term  is 
too  narrow  to  express  the  meaning  adequately."  ^ 
The  "  sanction,  of  the  law  against  stealing  is 
not  merely  penal  and  criminal,  it  is  in  our  ab- 
horrence of  the  moral  Avrong.  Now,  when  we 
vote  laws  on  these  moral  issues,  from  the  various 
motives  stated  in  the  foregoing,  part}^  pressure, 
moral  uneasiness,  social  bearing,  &c.,  we  do  not 
consider  this  grand  principle  of  sanction  which 
should  first  inspire  our  conduct,  or  our  civic 
attitude,  as  we  have  called  it.  We  forget  that 
every  right  carries  with  it  a  corresponding  duty, 
we  speak  of  right  legally.  When  you  enact 
that  one  class  of  persons  shall  carry  out  a  cer- 
tain law,  you  thereby  enlarge  the  right  of  these, 

i  Austin,  Jurisprudence,  I.  92. 


PROHIBITION  AND  REGULATION.     143 

and  you  obligate  another  class  by  a  cluty.^  The 
law  officers  must  execute ;  all  others  compre- 
hended must  obey.  Now,  the  strange  mist  in 
our  minds  has  befogged  the  notions  of  temper- 
ates  in  this  regard.  A  moral  right  is  essential 
and  sacred,  born  of  the  divine  within ;  a  legal 
right  is  a  constructive  and  technical  thing,  by 
which  society  administers  order  and  justice. 
While  it  lasts,  it  is  strong  as  gravitation  itself 
in  an  Anglo-Saxon  community.  The  slave 
Burns  was  driven  back  into  slavery  under  the 
power  of  the  State  of  Massachusetts,  though 
three-quarters  of  her  freemen  would  have  killed 
every  man  who  laid  a  hand  on  him,  if  simple 
murder  had  been  the  only  crime  involved. 

The  use  of  liquor  runs  so  easil}^  into  passion- 
ate abuse,  that  every  man  touches  it  nervously. 
Above  all,  sensitive  persons  dread  the  influence 
of  their  acts  upon  others.  All  this  we  formulate 
at  the  polls  into  a  legal  right  to  restrain  the 
sale  of  the  dreaded  stuff ;  the  legal  duty  which 

^  "  Eights  and  obligations,  though  distinct  and  opposite  in 
their  nature,  are  simultaneous  in  their  origin,  and  inseparable 
in  their  existence."  —  Dentham's  Theory  of  Legislation,  p.  93. 


144  PROHIBITORY  LIQUOR  LAW. 

should  follow  we  do  not  propose  to  ourselves, 
but  lay  it  upon  others.  Every  temperate  man 
votmg  prohibition  all  these  years  has  not  pro- 
hibited himself  thereby,  — he  has  meant  to  pro- 
hibit somebody  else.  The  sale  and  use  of 
liquors  prove  this.  The  temperate  see  a  drunk- 
ard in  the  gutter,  an  orphan  in  the  asylum,  a 
whiskey- dealer  wallowing  in  his  gains ;  they 
transmute  this  moral  sensibility  into  a  legal 
right  of  prohibition.  This  legal  right  thus  be- 
comes a  tyranny,  for  there  is  no  corresponding 
change  in  the  habits  of  the  majority  or  of  the 
whole  public.  As  said  above,  the  legal  right  is 
imposed  by  the  majority,  who  must  always  in- 
clude the  temperates  :  the  legal  duty,  the  func- 
tion of  obedience,  is  laid  on  a  minority.  The 
consequence  is  the  same  which  has  proceeded 
from  all  tyrannies, — lying,  fraud,  plunder,  and 
suborning  of  testimony.  These  things  have 
been  done  by  good  men  with  good  intentions, 
but  a  moral  purpose  cannot  sustain  a  legal  right 
or  power,  unless  that  right  symbolizes  the  actual 
conduct  of  the  people,  and  not  their  maudlin 
sensibilities. 


PROHIBITION  AND  REGULATION.     145 

One  essential  cause  of  the  weakness  of  these 
statutes  in  their  practical  application  is  to  be 
found  in  the  indirection,  which  is  in  their  con- 
ception and  intention.  They  are  made  to  stop 
the  sale  of  liquors.  Why?  Because  the  sale 
is  wrong.  Why  is  it  wrong  ?  Because  people 
drink  them,  and  great  harm  ensues.  Is  it  wrong 
to  drink  liquors  ?  Here  not  one  person  in 
ten  could  give  an  affirmative  answer.  No  body 
of  legislators  or  voters  has  ever  said  or  believed 
that  it  is  absolutely  wrong  to  drink  a  glass  of 
liquor.  Yet  the  statute  proceeds  as  if  it  were  a 
crime  to  drink,  and  the  seller  was  a  participator. 

The  sale  of  lottery  tickets  is  forbidden ;  but 
it  is  because  they  are  used  in  gambling,  and 
gambling  is  against  the  law. 

Bad  houses  are  forbidden  ;  it  is  because  forni- 
cation is  a  crime  under  the  law. 

The  sale  of  bad  books  is  forbidden ;  but  it  is 
because  they  are  bad  in  essence,  and  no  one  but 
a  few  criminals  claims  otherwise. 

The  sale  of  gunpowder  and  other  regulative 
measures  stand  on  different  ground. 
7  J 


146  PROHIBITORY  LIQUOR  LAW. 

The  action  of  probibition  is  indirect ;  it  lays  a 
penalty  on  a  deed  wbicb  is  not  a  crime,  wbicb,  in 
fact,  never  becomes  a  crime,  but  in  certain  con- 
tingencies leads  a  man  into  drunkenness,  and 
thence  he  falls  into  crime.  A  process  so  winding 
and  circuitous  necessarily  carries  crooked  ways 
and  shaky  proceedings^  into  the  administration 
of  the  law  itself.  Prosecutors,  advocates,  and 
witnesses  are  all  moving  in  a  false  light,  which 
deranges  the  perspective  of  common  justice 
and  common  judicial  proceedings.  The  statute 
which  forbids  sale  has  been  broken.     The  per- 


1  One  Sypher,  a  longshoreman,  was  prosecuted  by  a  liquor- 
dealer  for  perjury  in  a  liquor  case,  and  we  cite  from  the  report 
of  the  "  Providence  Journal,"  December  23  :  —  Sypher  testified  : 
*'  A  bargain  has  been  made  between  myself  and  Mr.  Read 
{i.e.,  the  state  constable)  to  furnish  testimony  in  liquor  cases." 
The  state  constable  testified :  "  The  defendant  had  entered 
into  connection  with  the  state  constabulary,  and  made  an 
agreement  to  furnish  evidence  in  liquor  cases."  He  made 
memorandums  in  a  book  furnished  by  the  constable.  Another 
witness  testified  that  Sypher  "  stated  that  he  had  entered  into 
a  compact  with  the  state  constables,  by  which  he  was  to  re- 
ceive §5  for  every  case  in  which  he  testified  ;  he  was  asked  if 
he  got  $5  in  case  the  prosecution  failed,  and  my  impression  is 
tliat  he  answered  that  it  made  no  difference  whether  the  case 
failed  or  not."  These  are  the  artificial  crimes  which  artificial 
laws  breed  and  nourish. 


PROHIBITION  AND  REGULATION.     147 

son  who  participated  in  tlie  act,  the  drinker, 
feels  no  sense  of  crime  ;  indeed,  the  law  nowhere 
makes  him  criminal.  The  communitj^  in  which 
the  drinker  moves  —  and  a  man  rarely  rises 
above  the  moral  sense  of  those  around  him  —  do 
not  regard  the  act  of  drinking  as  a  crime.  Then 
the  penalty  is  out  of  all  proportion  to  the  offence 
involved.  This  affects  the  testimony,  affects 
the  prosecutor,  affects  the  court.  It  is  well 
known  that  it  is  hard  to  get  a  verdict  for  mur- 
der from  a  jury,  every  member  of  which  carries 
a  pistol  in  his  pocket.  The  state  is  placed  in  a 
position  where  it  creates  crime  out  of  a  simple 
act,  not  in  itself  evil,  pursues  by  testimony  not 
fair  in  the  ordinary  sense,  and  convicts  under 
an  unwilling  as  well  as  blind  justice.  The 
whole  process,  from  the  inception  of  the  law  to 
the  conviction  of  the  criminal,  is  artificial  and 
not  vital. 

This  and  almost  every  argument  against  pro- 
hibition is  met  by  the  rejoinder,  ''  Society  has  a 
right  to  protect  itself."  When  used  in  a  gen- 
eral sense,  this  is  one  of  those  singular  maxims 


148  PROHIBITORY  LIQUOR  LAW. 

or  saws  which  Bentham  terms  a  fancy.  "  What 
is  this  reason  ?  If  it  is  not  a  distinct  view  of 
good  or  evil,  it  is  a  mere  fancy;  it  is  a  des- 
]3otism,  which  announces  nothing  but  the  in- 
terior persuasion  of  him  who  speaks."  ^  Fully 
expressed,  the  saying  would  be,  "  Society  is  all- 
powerful.  I  think  this  act  (whatever  the  same 
may  be)  is  a  proper  exercise  of  its  power. 
Others  oug^ht  to  think  so.  Therefore  this  act  is 
right." 

We  think  this  widely  diffused  notion  merely 
confounds  the  terms  "  sovereignty  "  and  "  right." 
The  sovereign  power  is  absolute  and  "  is  legally 
uncontrolled  both  from  within  and  without." 
A  large  number  of  persons  and  a  few  common- 
wealths in  the  United  States  misinterpreted 
this  plain  truth  about  the  year  1861,  and  great 
tribulation  resulted  thereby.  An  old  fisherman, 
whom  the  writer  knew,  though  a  man  of  strong 
character,  sometimes  over-indulged  in  his  cups. 
One  cold  night,  when  in  this  state  he  turned 
every  member  of  his  family  out  of  doors,  saying, 

1  Theory  of  Legislation,  p.  74. 


PROHIBITION  AND  REGULATION     149 

*'  I  will  be  cl — d  if  I  don't  show  you  Captain 
Barber  lives  here."  This  absolute  principle  is 
inherent  in  government ;  it  is  oriental.  But  it 
has  been  the  business  of  civilized  j)eople  of  the 
Teutonic  and  Anglo-Saxon  races  especially  to 
frame  heavy  checks  and  restraints  which  they 
have  imposed  on  this  authority  ;  until  the  mean- 
est citizen  or  smallest  infant  has  rio^hts  before 
which  supreme  arbitrary  power  itself  must  fold 
its  hands  in  dumb  silence.  "  When  the  sover- 
eign power  commands  its  subjects  to  do  or 
forbear  from  certain  acts,  the  claim  for  such 
performances  or  forbearances  which  one  person 
thereby  has  upon  another,  is  called  a  riglit ;  the 
liability  to  such  performances  or  forbearances  is 
called  a  duty  ;  and  the  omission  of  an  act  com- 
manded to  be  done,  or  the  doing  of  an  act  com- 
manded to  be  forborne,  is  called  a  wrongs  ^ 

"  All  sovereign  legislatures,  whether  of  one 

or    many,    are,    and    are    alone,    the     sources 

from  which  all  rights   flow.     Yet  we    hear   of 

original  rights,  natural  rights,  &c.  .  .  .  All  that 

^  Geo.  Cornewall  Lewis.    Political  Terms,  p.  7. 


150  PROHIBITORY  LIQUOR  LAW. 

those  persons  mean  is,  that  in  their  opinion  the 
claims  which  they  call  rigliU  ought,  in  sound 
policy,  to  be  sanctioned  by  law.  It  is  the  duty 
of  such  persons  to  show  that  sound  policy  re- 
quires what  tliey  require."^ 

The  burden  of  proof  lies  on  the  maker  of  a 
statute.  He  must  show  that  the  proposed  meas- 
ure forbids  something  evil  in  itself.  This  makes 
a  positive  law  against  crime,  which  society 
knows  to  be  crime.  These  statutes  need  no 
argument  for  their  right  to  be ;  the  question  is 
merely  one  of  methods.  Or,  in  the  second 
place,  he  must  show  that  his  measure  is  proper, 
in  that  it  will  prevent  practices  by  which  evil 
IS  directly  incurred.  The  question  then  be- 
comes one  of  experience  ;  the  statute-maker 
must  above  all  things  show  that  it  will  suc- 
ceed.2 

J  Geo.  Cornewall  Lewis.     Political  Terms,  pp.  23,  24. 

2  People  talk  of  the  easy  success  of  these  liquor  statutes  if 
this  or  that  could  be  granted.  They  forget  the  inlierent  diffi- 
culties of  the  situation.  We  would  say  a  States  prison  could 
keep  its  inmates  from  drinking.  Vet  in  Sing  Sing  an  astute 
convict  entrusted  with  the  vegetables  managed  to  secrete  pota- 
toes, distilled  them,  and  sold  the  whiskey  to  his  fellows. 


PROHIBITION  AND  REGULATION.     151 

"  T?ie  legislator  is  not  the  master  of  the  disposi- 
tions of  the  human  heart,  he  is  only  their  interpre- 
ter and  their  minister.  The  goodness  of  the  laws 
depend  upon  their  conformity  to  general  expecta- 
tion. ...  To  become  the  controller  of  expectation, 
the  law  ought  to  present  itself  to  the  mind  as  cer- 
tain to  he  executed;  at  least  no  reason  for  presuming 
the  contrary  ought  to  appear.  Is  there  ground  for 
supposing  that  the  law  "will  not  be  executed  ?  An 
expectation  is  formed  contrary  to  the  law  itself. 
The  law  then,  is  useless.  It  never  exercises  its 
power  except  to  punish ;  and  these  inefficacious 
punishments  are  an  additional  reproach  to  the  law."  ^ 

It  is  not  enough  to  show  that  there  is  great 
evil  at  work,  and  to  stop  it  would  be  a  good 
thing.  The  makers  of  these  secondary  statutes 
must  show  by  overwhelming  testimony  that 
their  principle  of  legislation  will  do  the  work 
and  accomplish  its  ends,  or  else  there  is  no 
foundation,  no  right  of  being,  for  the  law  itself. 
All  the  rights  of  society,  inherent  or  acquired, 
cannot  go  beyond  these  two  principles  stated 
above.  A  people  drunk  with  a  passion,  whether 
of  anger  or  of  fanaticism,  may  impose  any  stat- 

1  Bentham.    Theory  of  Legislation,  pp.  148,  153. 


152  PROHIBITORY  LIQUOR  LAW, 

ute  they  please  ;  it  may  obtain  an  abstract  foun- 
dation, just  as  our  friend,  Captain  Barber, 
established  his  authority.  But  although,  in  one 
sense,  the  sovereign  power  is  never  wrong,  the 
great  principles  of  justice  finally  upset  the  stat- 
ute. Nemesis  pursues  peoples  and  statutes  as 
well  as  individuals. 

For  example,  the  use  of  fine  bolted  wheaten 
flour  is  a  partial  evil.  If  a  majority,  however 
constructed,  could  impose  a  statute  that  every 
one  should  eat  coarse  hulled  flour,  this  measure 
would  fall  within  these  fancied  "rights,"  and 
establish  itself  as  a  function  of  the  state.  It 
would  none  the  less  be  a  tyranny,  and  even  after 
vested  rights  had  been  satisfied  the  law  would 
never  become  a  living  success.  Fine  white 
bread  would  taste  sweeter  than  ever,  and  each 
man  would  say  that  he  would  decide  for  himself 
what  flour  his  stomach  should  digest. 

The  liquor  traffic,  like  other  trades,  has  al- 
ways been  more  or  less  controlled  by  statute 
law.  But  the  principle  of  prohibition  is  a  new 
contrivance  quite  recently  introduced.     It  does 


PROHIBITION  AND  REGULATION.      153 

not  undertake  the  control  of  a  traffic,  it  under- 
takes the  control  of  the  appetite  of  every  indi- 
vidual so  far  as  the  beverage  of  alcoholic  liquors 
is  concerned.  We  have  shown  that  the  stat- 
utes laid  in  this  principle,  so  far  from  having 
an  "  expectation "  of  success,  have  uniformly 
failed.  In  application,  they  have  never  suc- 
ceeded long  enough  to  be  called  working 
laws. 

An  odd  conceit,  we  can  hardly  call  it  an  argu- 
ment, which  the  prohibitionists  put  forth,  is  the 
claim  that  if  you  impose  any  restriction  on  the 
■seller  of  liquor,  through  requirement  of  license 
or  otherwise,  you  thereby  take  away  the  natural 
right  of  the  citizen  to  purchase,  and  thus  estab- 
lish the  same  principle  as  they  attain  through 
prohibition.  When  the  history  of  this  legisla- 
tion comes  to  be  read  in  a  disinterested  time, 
we  venture  to  predict  nothing  will  seem  more 
strange  than  this  notion  which  is  put  forward 
through. one  and  another  argument.  Accord- 
ing to  this  theory,  the  government  has  forbidden 
and  attempted  to  cut  off  about  every  action 
7* 


154  PROHIBlTORy  LIQUOR  LAW. 

which  enters  into  the  daily  life  of  the  citizen. 
Look  at  a  few  instances. 

The  city  provides  that  we  shall  give  our 
refuse  matter  to  licensed  swill-carts.  Does  it 
thereby  forbid  the  carrying  away  of  garbage 
from  our  premises  ? 

It  licenses  a  few  persons  to  sell  gunpowder. 
Does  it  prevent  every  one  from  obtaining  pow- 
der when  he  desires  it  ? 

It  prevents  the  sale  of  adulterated  milk,  and 
obliges  the  milk-dealer  to  use  a  standard  meas- 
ure. Do  these  methods  prevent  us  from  getting 
milk  when  we  desire  it  ? 

It  allows  no  one  but  an  authorized  physician 
and  pharmaceutist  to  prescribe  and  prepare 
medicines.  Does  that  prevent  us  from  obtaining 
arsenic  to  kill  rats,  although  some  people  may 
use  the  poison  for  suicide  ? 

They  argue,  in  turn,  that  there  is  no  parallel 
between  regulation  of  milk,  gunpowder,  and 
similar  traffic,  and  the  sale  of  liquors,  which  is 
exceptional.  This  begs  the  question.  The 
state  would  cut  off  the  sale  of  liquor  as  a  bev- 


PROHIBITION  AND  REGULATION,     155 

erage,  either  because  it  is  a  poison  always  inju- 
3'ious,  or  because  from  actual  experience  it  has 
found  the  prohibition  useful.  Now  the  poison 
theor}^  of  alcoholic  liquors  is  at  best  in  abey- 
ance. It  never  was  an  established  proof  on 
which  governmental  interference  could  be  based. 
Latterly  science  tends  more  and  more  in  the 
opposite  direction.  As  Dr.  Hammond  says,  "If 
alcohol  is  not  food,  what  is  it  ?  We  have  seen 
that  it  takes  the  place  of  food,  and  the  weight 
of  the  body  increases  under  its  use."  ^  On  the 
other  hand,  we  have  shown  that  prohibition, 
instead  of  being  a  tried  success,  is  a  failure. 
The  notion  that  there  is  no  practical  difference 
between  a  certain  amount  of  prohibition  and 
a  certain  amount  of  license  is  absurd  logically 
and  in  fact.  Certain  principles  of  government 
are  radically  different.  The  mildest  form  of 
confiscation  differs  absolutely  from  the  worst 
kind  of  taxation  ever  invented.  So  prohibition 
cuts    off,   while   license   permits.      Those   who 

1  Psychological  and  Medico-Legal    Journal.     July,   1874, 
page  10. 


156  PROHIBITORY  LIQUOR  LAW. 

would  make  the  former  into  the  latter,  are  like 
the  historical  old  woman  Avho  granted  free  per- 
mission that  her  boy  should  learn  to  swim. 
"  Learn  to  swim  by  all  means,  but  never  go  near 
the  water." 

We  claim  that  in  reviewing  prohibition,  both 
from  our  own  point  of  view  and  from  that  of  its 
advocates,  we  have  proven  that  it  is  not  a  regu- 
lation of  the  liquor  traffic.  Regulation  presup- 
poses a  use  of  liquors  for  a  beverage,  just  as  the 
common  statutes  look  forward  to  a  use  of  medi- 
cines or  salt.  The  use  of  liquors  as  a  beverage 
is  a  common  and  well-known  fact.  Prohibition 
proposes  to  interdict  this  use  by  a  wholesale 
edict.  It  is  not  like  forbidding  the  sale  of  poi- 
son to  one  intending  suicide ;  this  is  an  excep- 
tional stoppage  of  a  dark  crime.  The  use  of 
liquors  as  a  beverage,  whether  they  be  food  or 
not,  is  something  which  the  majority  of  the 
community  have  adopted  into  their  every-day 
life.  With  that  common  use  of  alcohol  there 
goes  an  abuse  which  engenders  among  us  a  vast 
amount  of  vice  and  crime.     To  attempt  to  stop 


PROHIBITION  AND  REGULATION    157 

the  abuse  and  evil  consequences  by  forbidding 
the  use,  is  no  more  practicable  than  it  would 
have  been  to  cut  off  the  use  of  pork  by  statute 
because  much  pork  held  "  trichinae,"  and  thus 
injured  people.  To  prohibit  the  use  of  liquors 
by  statute  law  —  z.e.,  to  forbid  their  sale,  which 
cuts  off  the  legal  enjoyment  of  them  from  all 
except  the  rich  and  strong — is  not  possible,  and 
is  wrong ;  it  is  impossible,  because  it  is  wrong. 


158  PROHIBITORY  LIQUOR  LAW, 


ANOTHER    SYSTEM. 


A  LTHOUGH  it  is  out  of  the  direct  line  of 
our  argument,  it  accords  with  our  moral 
purpose  to  offer  a  substitute  for  the  prohibitory- 
liquor  laws.  In  our  view,  any  system  which 
could  be  fairly  executed  would  be  better  than 
prohibition,  which  from  its  essential  nature  is 
incapable  of  execution.  The  first  condition  of 
any  judicious  system  would  be  some  substantial 
accord  among  the  main  body  of  the  people  leg- 
islated for.  Nearly  all  our  legislation  on  this 
subject  has  been  initiated  either  by  a  small  sec- 
tion of  passionate  reformers  on  the  one  hand,  or 
a  section  of  liquor-dealers  on  the  other.  These 
elements  must  ever  be  potent,  but  neither  should 
be,  or  need  be,  all-powerful.  The  whole  com- 
munity holds  the  main  interest  in  this  impor- 
tant question,   and  sooner  or  later  this  great 


ANOTHER  SYSTEM.  159 

public,  central  good  will  assert  itself  and  control 
the  wings  of  abstinence  and  free  license  accord- 
ing to  its  own  larger  and  mastering  judgment. 
Great  reforms  always  work  out  in  this  way. 
The  American  nation  thought  for  generations, 
and  honestly  too,  that  slavery  was  a  side  issue, 
affecting  only  fire-eaters  or  abolitionists.  Sud- 
denly it  awakened  to  the  consciousness  that  its 
own  life  was  in  danger ;  then  it  settled  the  ques- 
tion, and  settled  it  for  the  public  good,  not  as 
either  party  desired  or  would  have  believed 
possible. 

No  principle  can  e^'er  unite  this  great  pub- 
lic sentiment,  and  weld  it  into  effective  action, 
which  is  not  founded  on  absolute  justice.  As 
the  matter  stands  before  the  law,  a  man  desir- 
ing a  gill  of  whiskey  or  of  beer  has  a  right  to  it. 
The  contingent  fact  that  he  may  add  other  gills 
to  his  want,  and  thus  make  himself  a  drunkard 
or  a  pauper,  is  in  practical  life  too  remote  for  the 
law  to  control  by  forbidding  the  first  want. 
No  legislation  looking  so  far  into  future  risks 
ever  did  succeed.     If  a  great  mass  of  citizens 


160  PROHIBITORY  LIQUOR  LAW. 

are  moved  by  this  desire,  which  cannot  be 
shown  to  transgress  a  law  of  God,  then  it  is 
the  business  of  government  to  provide  for  the 
desire.  The  desire  for  the  first  glass  of  liquor 
is  legitimate,  and  cannot  be  cut  off  by  the  risk 
or  possibility  of  a  fourth  glass.  A  man  who 
buys  too  much  tenderloin  steak  may  make  him- 
self dyspeptic,  or  the  woman  who  buys  a  silk 
dress  may  make  herself  a  pauper ;  but  the  law 
cannot  look  to  such  issues.  This  principle  of 
individual  liberty  goes  to  the  very  foundations 
of  every  law,  social  custom,  or  personal  opinion. 
It  is  too  large  and  too  important  to  be  much 
affected  by  the  evils  of  intemperance,  great  as 
those  evils  are,  individually  and  socially.  John 
Stuart  Mill  says  :  — 

"  Neither  one  person  nor  any  number  of  persons 
is  warranted  in  saying  to  another  human  creature 
of  ripe  years,  that  he  shall  not  do  with  his  Hfe  for 
his  own  benefit  what  he  chooses  to  do  with  it.  He 
is  the  person  most  interested  in  his  own  well-being 
.  .  .  the  interest  which  society  has  in  him  individ- 
ually (except  as  to  his  conduct  to  others)  is  frac- 
tional, and  altogether  indirect;  while,  with  respect 


ANOTHER  SYSTEM,  161 

to  his  own  feelings  and  circumstances,  the  most 
ordinary  man  or  woman  has  means  of  knowledge 
immeasurably  surpassing  those  that  can  be  possessed 
by  any  one  else."  ^ 

A  few  theorists  place  the  basis  of  rights  in 
society  and  not  in  the  individual,  holding  that 
personal  rights  are  privileges  which  society 
grants  for  its  own  good.  The  legitimate  func- 
tions of  society  have  been  coherently  developed 
to  their  fullest  extent  by  Mr.  Mulford,  in  his 
work  on  "  The  Nation."  He  gives  the  nation 
or  society  the  powers  and  responsibilities  of  a 
moral  being.  But  he  definitely  puts  by  the 
theory  that  society  gives  rights  to  the  individ- 
ual. "  There  is  in  the  nation  the  institution, 
not  the  creation  of  rights,  since  their  founda- 
tion is  in  the  nature  of  man,  and  their  affirma- 
tion is  in  the  nation."  ^ 

It  is  established  that  the  individual  has  in 
himself  certain  rights.  When  society  trans- 
gresses these,  it  passes  beyond  the  province  of 

1  Mill  on  Liberty,  p.  147. 

2  Mulford's  Nation,  p.  106. 

K 


162  PROHIBITORY  LIQUOR  LAW. 

law.  As  Professor  Amos  says,  in  another  con- 
nection, it  attempts  to  "  deluge  law  with  morals.'* 
Among  these  rights  is  that  of  drinking,  so  long 
as  the  drinker  does  not  make  himself  a  nuisance 
to  others.  However  we  may  hedge  him  about, 
and  restrain  him,  and  prescribe  the  manner  of 
his  drinking  and  purchasing,  for  the  social  good, 
yet  the  original  right  cannot  be  extinguished, 
but  remains  unaffected.  If  my  neighbor  has  a 
right  of  way  across  my  estate,  way  must  always 
be  made  for  him.  He  cannot  drive  through  my 
strawberry  beds  and  clover  fields ;  I  can  regu- 
late that ;  but  a  good  and  sufficient  way  must 
always  be  kept  open.  When  society  deliberately 
cuts  off  the  power  of  the  citizen  to  purchase 
liquors  in  reasonable  amounts,  it  commits  an 
act  of  injustice,  no  matter  how  good  the  intention 
may  be.  That  injustice  cries  out  until  it  rights 
itself  ;  it  moves  the  foundations  of  society  until 
the  stone  which  the  builders  rejected  becomes 
the  head  of  the  corner. 

Therefore  we  say  society,  as  a  whole,  must 
take  up  this  matter,  and  base  the  regulation  of 


ANOTHER  SYSTEM,  163 

the  traffic  on  the  prmciples  of  justice  and  the 
common  sense  of  experience.  We  are  met  at 
once  by  the  rejoinder  from  prohibitionists,  that 
license  laws  have  always  failed  in  practice  to 
satisfy  the  community.  Suppose  they  have 
failed,  that  does  not  make  prohibition  just. 
Latterly,  the  license  laws,  and  especially  in  the 
New  England  States,  have  been  mere  make- 
shifts, the  lax  reactions  which  always  follow 
overstrained  laws ;  they  have  been  the  immoral 
result  of  over-moralization.  The  liquor  dealers 
have  controlled  them,  and  they  have  been  ad- 
ministered in  no  thorough  spirit  of  regulation. 
The  reason  the  liquor  dealers  have  such  strength 
is  because  prohibitory  attempts  put  such  a  force 
of  customers  behind  them.  Take  away  this 
unnatural  pressure,  give  reasonable  play  to  the 
appetite  of  the  individual,  and  then  get  his  in- 
fluence in  restraining  the  traffic  for  the  good 
of  society.  The  power  of  liquor  dealers  will 
then  shrink  to  its  natural  proportions  like  that 
of  other  traders. 

We  can  offer  a  system   of  regulated   traffic 


164  PROHIBITORY  LIQUOR  LAW. 

which  is  based  on  justice,  respects  the  individual, 
and  is  worked  in  every  detail  for  the  benefit  of 
the  whole  community,  so  far  as  this  appetite 
can  be  controlled  by  any  mechanism.  It  has 
the  further  advantage  of  success  after  more  than 
eight  years  of  trial. 

Sweden  has  always  used  liquors  freely,  and 
abused  them  as  well.  The  people  are  northern 
in  race  as  we  are,  and  their  climate  has  always 
favored  a  large  consumption  of  spirits.  One 
town,  after  trying  free  license,  then  partial 
licenses  unsuccessfully,  hit  on  the  plan  of  con- 
centrating all  the  licenses  into  one  associa- 
tion which  should  represent  the  public.  The 
gradual  growth  of  this  system  is  detailed  in 
"  Macmillan's  Magazine "  for  February,  1872, 
and  October,  1873.     We  cite  :  — 

"  In  ^  Gothenburg  (the  second  town  of  Sweden, 
a  seaport  with  a  manufacturing  and  trading  popula- 
tion of  58,000  in  1872),  all  the  public-house  licenses 
are  held  by  a  single  '  retailing  company,'  incorporated 
by  royal  charter.  Each  license  representing,  as  with 
us,  the  right  to  open  one  public-house,  the  directors 
1  "  Macmillan,"  vol.  28,  p.  522. 


ANOTHER  SYSTEM.  165 

use  in  rliflferent  parts  of  the  town  just  so  many  of 
their  licenses  as  they  deem  required  by  the  popula- 
tion. In  the  first  place,  they  take  care  that  all 
houses  in  which  liquor  is  sold  are  light,  well  venti- 
lated, and  roomy.  Into  each  they  put  a  manager, 
on  the  terms  that  he  is  to  take  all  his  supplies  of 
spirits  from  the  company,  and  to  pay  over  to  them 
every  farthing  received  for  spirits  sold,  his  remuner- 
ation consisting  of  the  profits  on  his  sales  of  tea  and 
coffee,  malt  liquors,^  cigars,  and  eatables,  supple- 
mented, in  most  cases,  by  a  fixed  salary.  Once  a 
year  the  company's  balance-sheet  is  submitted  to 
and  audited  by  the  municipal  authorities,  and  there- 
upon the  entire  amount  of  the  net  profits  for  the 
past  twelve  months  is  paid  into  the  municipal  treas- 
ury, and  becomes  part  of  the  general  revenue  of  the 
town.  All  this  is  an  embodiment  and  earnest  striv- 
ing after  the  realization  of  sundry  definite  conclu- 
sions about  the  drink  traffic  at  which  the  Gothen- 
burgers  arrived  eight  years  ago.  They  embodied  the 
results  of  their  experience  in  the  following  four  prin- 
ciples :  2  I.  Spirits  to  be  retailed  without  any  profit 
•whatever  to  the  retailer,  who  can  thus  have  no 
temptation  to  stimulate  their  consumption.     II.  The 

1  In  "  Sweden,  a  country  of  spirit  drinkers,  the  trade  in  malt 
liquors  has  only  quite  recently  been  deemed  important  enough 
to  require  legislative  regulation  and  restriction." 

2  "  Macmillan,"  February,  1872,  p.  311. 


166  PROHIBITORY  LIQUOR  LAW. 

sale  of  spirits  on  credit,  or  on  the  security  of  pledges, 
to  be  stringently  i^rohibitcd.  III.  All  houses  in 
which  the  liquor  trade  is  carried  on  to  be  well 
liglited,  roomy,  airy,  and  clean.  lY.  Good  victuals 
at  moderate  2:)rices,  to  be  always  procurable  in  drink- 
ing-houscs  by  anybody  demanding  them.  It  was  not 
in  the  nature  of  things  that  any  private  individual, 
trader  or  non-trader,  should  be  found  ready  to  carry 
out  such  a  programme  as  this.  It  was  tolerably  ob- 
vious that  if  the  scheme  was  to  be  put  through  at  all, 
a  number  of  the  leading  members  of  the  community 
must  loosen  their  purse-strings  and  put  their  shoul- 
ders to  the  wheel  together.  And  this,  thanks  to  the 
public  spirit  that  has  for  years  prevailed  at  Gothen- 
burg, was  done  promptly  and  effectually.  Upon  the 
requisition  of  an  influential  list  of  the  townsmen, 
headed  by  several  of  the  leading  mercantile  firms, 
the  government  granted  a  charter  of  incorporation 
to  a  company  formed  with  the  express  .object  of 
working  out  a  thorough  reform  of  the  local  liquor 
trade,  in  accordance  with  the  above  principles.  By 
the  terms  of  this  charter  the  maximum  nominal 
capital  of  the  company  is  fixed  at  200,000  rix- 
doUars,  or  rather  more  than  £11,000.  Each  share- 
holder is  declared  strictly  liable  up  to  the  amount 
of  his  guarantee  (i.e.,  stock.)  It  has  not,  however, 
been  found  necessary,  so  far,  to  call  upon  the  share- 
holders for  any  part  of  their  subscriptions.     Spirits 


ANOTHER  SYSTEM.  16T 

may  not  be  served  to  a  person  apparently  intoxi- 
cated ('overloaded'  is  the  expressive  term  in  the 
•act),  nor  to  a  minor ;  and  the  act,  in  its  tender 
solicitude  for  the  helpless  ti])pler,  provides  that  a 
person  '  overloaded '  is  not  to  be  turned  out  of  the 
house.  The  Gothenburgers  made  up  their  minds 
that,  though  they  could  not  stamp  out  the  spirit 
trade,  they  could  and  must  regulate  it;  and  that 
their  way  of  doing  so  should  be  to  limit  the  num- 
ber of  spirit  shops,  to  insure  the  purity  of  the 
spirits  offered  for  sale,  and,  the  most  important 
point  of  all,  to  make  it  nobody's  interest  to 
stimulate  the  consumption,  and  by  keeping  these 
principles  steadily  in  view,  the  Gothenburg  com- 
23any  have  been,  and  it  may  be  hojDed  will  continue 
to  be,  the  means  of  diminishing  substantially  and 
permanently  the  sum-total  of  drunkenness  and  crime 
among  their  fellow-townsmen." 

We  do  not  like  statistics  in  these  mat- 
ters, but  the  curious  can  trace  out  these 
fig^ures :  ^  — 

"  The  percentages  by  police  records  of  cases  of 
drunkenness  amongst  the  population  have  been : 
In  1864,  6.10;  in  1865  (the  company  established  at 

1  The  "  Fortnightly  I^eview  "  says  :  "  In  Gothenburg  the 
number  of  cases  of  delirium  tremens  has  been  diminished  by 
one-third." 


168  PROHIBITORY  LIQUOR  LAW. 

the  beginning  of  October),  5.57;  in  1866,  3.75;  in 
1867,  3.58;  in  1868,  3.50;  in  1869,  2.56;  in  1870, 
2.52;  in  1871,  2.67;  in  1872,  2.72."  ^ 

With   the   rise   of  wages   came   an   increase 

of  drunkenness,  but  there  was  a  deeper  cause 

of  trouble :  — 

"Xot  the  public-houses,  but  the  *  retail'  shops 
are  the  offenders, — places  where  the  holders  of  what 
we  term  grocer-licenses  sell  spirits  in  quantities  of  a 
half-^a^i  (about  a  quart)  and  upwards,  for  consump- 
tion off  the  premises.  This  branch  of  the  trade  the 
company  has  never  hitherto  been  able  to  control. 
There  have  been  stumbling-blocks  in  the  way  of 
their  supplanting  the  private  grocer-business;  and 
there  still  exists  in  the  town  no  less  than  five  and 
thirty  private  shops  of  this  class,  constant  thorns  in 
the  company's  side,  conducted,  as  they  naturally 
are,  with  a  view  above  all  things  to  profit;  and  so 
sedulously  counteracting  the  endeavors  of  the  com- 
pany to  discourage  the  consumption  of  alcohol.  The 
directors  of  the  company  know  that  cheap  drink 
spells  drunkenness,  and  that  high  prices,  in  this  as 
in  other  trades,  check  consumption.  So  where  they 
are  absolute  masters  of  the  situation,  in  the  public 
houses,  they  deliberately  put  a  high  price  on  the 
spirits  served ;  their  tariff-price  for  a  glass  of  hrdrh- 

1  Fortnightly  Review,  vol.  28,  p.  522,  et  seq. 


ANOTHER  SYSTEM.  169 

mn  (corn-whiskey,  the  staple  alcoholic  drink  of  the 
country,  and  particularly  of  the  lower  classes)  being 
6  are,  which  is  at  the  rate  of  3  rix-dollars  per 
han  ^  (equivalent  to  55.  10c?.  per  gallon) ;  whereas 
they  have  to  pay  the  distiller  only  2^.  hd.  per  gallon. 
Now  the  'retailers'  or  licensees  may  not  sell  less 
than  a  half-^*a;i  =  about  25  ordinary  dram-glasses, 
at  a  time.  ...  So  he  gets  a  few  kindred  souls  to 
practice  'saining'  with  him,  that  is,  to  club  their 
small  coins  to  make  up  the  price  of  a  \\?Mrkan  at 
the  spirit-grocers,  carrying  the  liquor  to  the  nearest 
convenient  corner  (for  consumption  on  the  premises 
would  be  directly  illegal),  and  there  drinking  it." 

They  could  not  reduce  the  amount  of  drunk- 
enness further  while  this  evil  was  at  work:  — 

"We  have  done  our  best  (says  the  company's 
report),  but  all  our  efforts  are  crippled  while  '  sai- 
ning' continues,  and  'saining'  will  continue  so 
long  as  the  grocer-licenses  remain  in  private  hands, 
and  are  worked  with  a  view  to  private  profit.  We 
are  convinced  there  is  one  remedy,  and  only  one, 
for  the  j^resent  evil,  and  that  is  for  the  municipality 
to  undertake  the  sole  and  entire  management  of 
the  local  retail  spirit  trade,  on  the  same  terms  as 
we  already  work  the  public  houses.  .  .  .  Last  Feb- 
ruary a  remarkable  series  of  meetings  was  held 
A  "  A  kan  is  rather  less  than  three-fifths  of  a  gallon." 
8 


170  PROHIBITORY  LIQUOR  LAW. 

in  Gothenburg.  The  "Workingmen's  Union  sponta- 
neously took  this  matter  into  consideration  .  .  . 
adopted  two  clear  suggestive  resolutions,  which 
were  forwarded  to  the  representatives  of  Gothen- 
burg in  the  Diet,  recommending  (1)  that  the  com- 
pany should  be  entrusted  with  all  spirit-licenses, 
grocer  as  well  as  public-house;  and  (2)  an  increased 
excise  duty  on  spirits,  with  the  sure  concomitant  of 
higher  retail  prices.  The  new  law  will  come  into 
operation  October,  1874."  ^ 

In  another  year  we  shall  learn  how  this  new 

feature  works  in  practice  :  — 

"What  the  company  will  do  with  their  mon- 
opoly, may  be  pretty  well  predicted  from  their 
past  conduct.  They  will  keep  open  only  so  many 
'grocer'  spirit  shops  as  may  be  competent  to  sup- 
]3ly  the  natural  unstimulated  demand  of  the  popu- 
lation. They  will  deliberately  handicap  these  shops 
by  so  raising  their  prices,  that  for  the  quart  of  25 
drams  of  branvin  there  will  be  charged  something 
like  the  price  of  25  separate  drams  at  the  public- 
house,  thus  removing  the  fundamental  reason  and 
attraction  of  the  '  saining '  trick." 

1  "  Since  above  was  written  the  auction  has  taken  place. 
After  a  keen  competition  twenlij-Jive  licenses  v/ere  di^sposed 
of,  for  (in  the  aggregate)  £2,000  more  than  thirty-five  fetched 
last  year, — a  fact  which  shows  the  large  profits  realized 
lately  by  the  private  licenses.     (August  14)." 


ANOTHER  SYSTEM.  171 

Scotland,  naturally  first  influenced  by  Swe- 
den, and  a  country  which  struggles  hard  with 
drunkenness,  is  moving  rapidly  toward  this 
system.  "  The  General  Assemblies  (in  May) 
of  the  three  principal  church  bodies  of  Scot- 
land, the  Presbyterian  Synod,  the  Established, 
and  the  Free  Church,  have  dwelt  upon  it  with 
marked  emphasis  and  approval."  The  "  Lon- 
don Spectator,"  ^  in  commenting  on  the  sys- 
tem, says:  — 

"The  merits  of  this  system  are  conspicuous. 
They  will  be  generally  recognized,  and  the  recog- 
nition cannot  fail  largely  to  affect  the  final  judg- 
ment of  the  public  as  to  its  feasibility.  Of  course 
its  grand  recommendation  is  that  it  utterly  disowns 
the  prohibitive  crotchet  of  your  fanatical  'Per- 
missionists.'  It  refuses  to  treat  the  question  as  if 
it  were  capable  of  being  solved  in  the  simple  and 
direct  manner  that  might  apply  to  the  choice  of 
Hercules.  It  takes  another  ground  from  that  of 
regarding  it  as  a  question  between  virtue  and  vice, 
virtue  being  typified  in  the  austere  respectability 
of  the  permissive  prohibitionist,  and  vice  in  the 
portly  form  of  the  publican.  So  far  we  deem  it 
rational  and  well-considered." 

1  "  Spectator,"  October  18,  1873. 


172  PROHIBITORY  LIQUOR  LAW. 

A  few  figures  will  show  what  the  payments 
to  the  town  revenne  from  this  source  have 
been.  ''  In  1865,  the  company  held  thirty-nine 
licenses  and  paid  in  50,782  rix  dollars.  Grad- 
ually increasing  in  1871,  the  company  held 
all  =  61  licenses,  and  paid  in  191,759  rix  dol- 
lars," or,  in  round  numbers,  97,000  United 
States  gold  dollars. 

The  direct  gains  in  money  to  the  commu- 
nity through  this  system  are  great ;  the  indi- 
rect are  still  greater,  and  cannot  be  measured. 
To  begin  with  some  of  the  more  remote,  the 
testimony  of  Gothenburgers  shows  an  immense 
gain  in  the  lessening  of  the  traffic,  and  thereby 
a  lessening  of  money  expended  for  the  indul- 
gence, and  consequently  a  lessening  of  poverty 
and  crime.  The  taking  away  of  the  profits 
from  the  common  liquor-dealers  is  a  collateral 
advantage  hardly  to  be  estimated,  for  these 
profits  are  too  often  badly  used.  The  gain  to 
the  revenue  is  large,  and  is  something  which 
every  tax-payer  can  see  with  the  keen  vision 
which  affects  the  pocket  more  than  the  optical 


ANOTHER  SYSTEM.  173 

nerve.  Any  man  or  woman  who  sees  a  hundred 
thousand  dollars  or  a  proportional  sum  going 
into  the  treasury  of  his  town,  will  be  a  good 
special  constable,  though  he  may  not  hold  a 
partisan  appointment  from  the  state,  to  help 
enforce  the  law  against  illicit  traffic  in  liquors. 
The  opposition  of  the  lower  end  of  the  liquor 
trade  would  be  strong,  but  it  would  lose  that 
tremendous  representative  weight  which  its 
backing  of  customers  now  gives  it  in  every 
political  agitation.  Decent  men,  and  not  the 
indecent,  make  the  strength  of  the  liquor  deal- 
er's custom,  and  they  would  rally  to  the  sup- 
port of  this  system,  for  each  one  would  see  that 
his  own  material  as  well  as  moral  interest  was 
furthered  by  paying  the  profits  of  his  own 
drinking  into  the  town  coffers  instead  of  the  till 
of  the  common  dealer.  The  importance  of  this 
detail  will  not  so  much  weigh  with  some  good 
women,  or  those  earnest,  impatient  men  who  can 
see  no  good  in  enlisting  the  common,  selfish 
motives  of  mankind  in  the  service  of  the  right. 
Men  skilled  in   legislation  and  administration, 


174  PROHIBITORY  LIQUOR  LAW. 

however,  knoAv  at  once  tliat  no  law  works  so 
easily  or  so  well  as  that  which  secures  the  co- 
operation of  a  great  mass  of  citizens  through 
the  details  of  its  own  operation. 

All  these  issues  of  the  system  are  subordi- 
nate to  the  main  question ;  is  it  true,  is  it 
right  ?  The  extreme  prohibitionist  will  an- 
swer, with  a  shriek,  that  no  sale  of  liquor  for 
a  beverage  can  be  right.  We  have  argued  to 
little  purpose,  if  we  have  not  proved  that  this 
opinion  is  not  held  by  any  large  number  of 
persons,  and,  from  the  nature  of  the  case,  can- 
not be  sustained  by  any  large  number  so  long 
as  men  are  as  they  are.  The  conscientious 
abstinent  would  be  released  from  his  unsatis- 
factory tugging  at  an  impossible  law,  and 
enabled  to  turn  his  efforts  toward  a  change 
in  the  inclinations  of  the  drinker.  We  should 
have  incorporated  in  this  system  all  that  the 
law  can  accomplish.  First,  a  privilege  is  se- 
cured to  every  individual  of  supplying  any  want 
of  his  appetite  which  under  the  law  is  legiti- 
mate ;  secondly,  all  the  fruits  of  this  privilege, 


ANOTHER  SYSTEM.  175 

are  husbanded  for  the  use  and  benefit  of 
society.  Society  incurs  a  certain  risk  v/hen- 
ever  an  individual  drinks,  —  a  risk  which  is 
beyond  that  of  the  individual.  As  some  com- 
pensation for  this  risk,  it  receives  all  the 
commercial  profit,  and  retains  control  of  the 
operation  under  the  wisest  rules  it  can  en- 
join. Turn  the  question  whichever  way  we 
may,  this  is  the  uttermost  the  state  can  ac- 
complish ;  no  ideal  government  could  get  more 
out  of  the  law  than  these  two  principles 
yield.  The  absolute  interdiction  of  the  nat- 
ural appetite  is  beyond  the  power  of  any 
government,  and  must  be  reached  by  other 
means  than  statute  law.  The  individual  on 
his  own  ground  is  mighty  against  the  pressure 
of  the  state,  or  of  society  in  mass  ;  but  he  is 
weak  and  helpless  against  the  moral  assaults 
of  other  individuals.  No  one  can  withhold 
his  ear  from  the  appeal  of  an  earnest  moralist. 
There  is  the  ground  where  the  abstinent  can 
reach  the  appetite  of  the  individual,  and  there 
only. 


176  PROHIBITORY  LIQUOR  LAW. 

This  system  would  require  some  change, 
but  not  much,  to  adapt  it  to  our  American 
life.  First,  we  must  have  a  strong  public 
sentiment  in  its  favor;  then  the  wise  men,  the 
strong  men  of  affairs,  the  administrative  men  in 
any  community,  must  take  hold,  and  carry  the 
principle  into  successful  operation.  Whether 
it  could  succeed  in  cities  hke  New  York  and 
London  would  be  matter  of  experiment ;  but 
there  is  every  reason  for  its  success  in  cities 
of  moderate  size  or  towns.  We  would  open 
one  restaurant  with  such  a  license  for  every 
one  thousand  inhabitants  in  a  town,  and  grant 
a  grocer's  or  package  license  for  every  three 
thousand  or  four  thousand  people.  This  would 
give  about  one  place  for  sale  or  drinking  in 
laro^e  towns  and  villas^es  where  there  are 
now  five  to  ten.  In  sparse  districts  the 
diminution  would  be  less.  If  the  practice  of 
"  saining "  or  clubbing  drinks  should  obtain, 
then  we  would  follow  the  Swedish  example, 
and  concentrate  all  the  licenses  in  the  one 
company  of  each   town.     Probably  this   prac- 


ANOTHER  SYSTEM.  177 

tice  YTOuld  not  be  relatively  so  potent  in 
America,  yet  it  might  interfere  with  the  best 
working  of  the  system.  Still  it  would  be  bet- 
ter to  come  to  the  result  gradually,  through 
the  convictions  of  the  people,  and  not  to  start 
with  all  the  pressure  of  a  close  monopoly. 
We  should  Hkewise  be  careful,  over-careful 
even,  in  limiting  the  consumption  by  exorbitant 
prices.  The  American  people,  though  wonder- 
fully patient,  as  these  absurd  prohibitory  stat- 
utes well  show,  yet  do  not  like  to  be  governed 
too  much.  The  higher  prices  should  be  made 
the  greater  the  inducements  to  illicit  traffic  ; 
and,  in  our  view,  illicit  traffic  aggravates  the 
e^dls  of  drinking  enormously.  We  would  have 
no  secret  places  for  drinking.  If  it  is  a  good 
thing  for  a  young  man  '*  to  take  a  drink," 
then  it  is  good  to  take  it  openly.  If  he 
needs  it,  he  should  not  be  ashamed  of  the 
fact,  and  the  whole  public  sentiment  would 
soon  come  to  an  expression  of  these  principles. 
The  sort  of  half-sjnnpathy  which  now  goes 
with  the  dodging  of  an  impossible  law  would 

8*  L 


178  PROHIBITORY  LIQUOR  LAW. 

be  taken  away  from  a  fellow  who  skulked  in 
holes,  when  every  reasonable  want  should  be 
gratified.  This  would  not  absolutely  keep 
young  men  from  error,  but,  in  another  method, 
though  by  the  same  principle  as  we  indicated 
in  the  legal  method,  it  would  do  for  them  all 
that  a  wholesome  public  opinion   could  do. 

Public  sentiment  can  assist  the  individual, 
and  draw  him  by  a  wise  sympathy  toward 
a  better  development  of  himself.  It  cannot 
make  him,  nor  refashion  him  by  statute  law 
or  wholesale  clamor  into  a  being  differing 
from  his  own  nature. 


IMMORAL  LAW-MAKING,  179 


IMMORAL   LAW-MAKING. 


''/^ENTLEMEN,"  said  Edmund  Burke, 
"  bad  laws  are  the  worst  sort  of  tyranny. 
In  sucli  a  country  as  this  they  are  of  all  bad 
things  the  worst.  Worse  by  far  than  anywhere 
else ;  and  they  derive  a  particular  malignity 
even  from  the  wisdom  and  soundness  of  the  rest 
of  our  institutions."  ^ 

Human  law  is  a  mighty  force ;  it  faintly  re- 
flects the  ordering  power  of  Omnipotence  itself. 
On  the  infinite  side  it  is  little  and  full  of  error; 
on  the  finite  side,  in  our  actual  life,  it  is  majestic, 
and  is  the  grandest  reality  we  know.  It  is  so 
great  a  blessing  that  generally  we  are  not  con- 
scious of  it,  as  we  breathe  and  see  unconsciously, 
though  light  and  air  are  the  greatest  of  natural 
facts.  The  parts  of  law  and  lawful  order  which 
we  do  see  are  the  least  parts,  and  those  which 

1  Rivington's  Ed.,  III.  426. 


180  PROHIBITORY  LIQUOR  LAW, 

give  to  the  vulgar  mind  its  notions  of  the  prov- 
ince and  character  of  legal  administration. 
Punishing  criminals  and  adjusting  the  selfish 
conflict  of  rights  is  not  the  main  province  of 
law,  though  here  it  commonly  manifests  itself, 
and  many  do  not  look  beyond  these  superficial 
results.  The  true  action  of  law,  that  which 
makes  or  unmakes  society,  just  as  breathing 
affects  the  body  for  good  or  ill,  lies  deeper 
down,  and  embodies  our  living;  —  embodies  it 
on  the  human  and  earthward  side,  as  religion  or 
the  spirit  of  God  with  us  embodies  it  on  the 
heavenward  side.  After  all,  what  does  the 
illuminated  righteousness  of  a  man  do  for  his 
neighbors,  unless  he  embodies  it  in  "  positive 
morality,"  as  Mr.  Austin  terms  it,  or  the  moral 
order  of  the  law,  —  something  which  enters  hito 
the  actual  living  of  the  citizen,  which  is  tangi- 
ble, and  goes  to  the  making  of  a  state,  just  as 
plank  and  timber  go  into  the  hull  of  a  ship  ? 

The  common  idea  of  innocence  and  natural 
simplicity  is  pictured  in  the  free  life  of  the 
farmer  at  the  plough,  tilling  his  field  in  joyous 


IMMORAL  LAW-MAKING.  181 

hope,  and  free  from  the  cares  which  social  re- 
straint and  artificial  laws  have  netted  around 
less  favored  creatures.  When  did  this  natural 
farmer  ever  exist  since  the  gates  of  Paradise 
closed  on  an  idle  recipient  of  God's  bounty,  and 
opened  the  world  to  a  laboring  partner  of  the 
Creator  himself?  What  savage  ever  tilled  his 
field  without  the  harsh  control  of  his  chief,  or  a 
bitter  struggle  with  his  enemy  ?  Wretched  as 
the  interior  of  Africa  is,  yet  Schweinfurth  found 
order  and  government,  desjDotic  but  effective. 
"  One  of  the  most  influential  personages  of 
the  neighboring  race  of  the  Lao  was  a  woman 
already  advanced  in  years,  of  the  name  of  Shol. 
She  played  an  important  part  as  a  sort  of  chief 
in  the  Meshera,  her  riches,  according  to  the  old 
patriarchal  fashion,  consisting  of  cattle."  The 
New  England  Puritan,  with  gun  and  axe  on 
either  side  of  his  plough,  subduing  the  wild 
wood  while  he  watched  for  the  wilder  savage, 
symbolizes  the  whole  struggle  which  civilized 
man  has  carried  on  with  nature  and  the  natural 
man. 


182  PROHIBITORY  LIQUOR  LAW. 

Instituted  law  has  come  out  of  this  long  strug- 
gle ;  not  the  mere  policeman's  club,  though  his 
badge  carries  the  whole  history  upon  it,  but  the 
pure  spirit  of  order  diffused  through  society, 
moving  according  to  law,  and  not  under  the 
restraints  of  the  law.  It  is  not  religion  nor 
family  life  themselves,  but  it  is  to  them  as  the 
bones  are  to  the  body,  or  the  body  is  to  the 
soul. 

It  is  an  error,  more  or  less  common,  that  lib- 
erty lies  outside  instituted  law  or  social  order. 
That  individual  freedom  is  a  something  which 
man  has  kept  back,  while  surrendering  little  by 
little  of  his  natural  rights  in  the  developing 
contests,  we  have  indicated  above.  In  fact, 
there  never  was  any  such  freedom  or  liberty 
since  Adam  began  to  board  himself,  instead  of 
beino:  fed  as  a  brute  is  fed.  He  then  had  to 
consult  Eve,  and  she  was  obliged  to  consult  him, 
or  they  would  have  had  a  sorry  dinner.  Thus 
the  family  developed,  and  the  state  came  after- 
ward. An  individual  is  little  more  than  a 
mathematical  point  or  line  without  breadth  or 


IMMORAL  LAW-MAKING.  183 

thickness.  In  combination  with  others  he  finds 
his  own  powers,  and  builds  the  man,  as  we  un- 
derstand him,  out  of  his  intercourse  with  other 
men.  The  liberty  a  savage  values  was  not  the 
right  to  catch  a  fish  or  dig  a  yam,  but  the  power 
to  keep  them,  and  to  find  his  wife  and  children 
in  his  hut  after  he  returned  from  a  search  after 
other  rights  ;  and  he  at  once  surrendered  what- 
ever he  had  to  his  chief,  that  he  might  have  the 
liberty  which  comes  through  order,  and  cannot 
exist  individually  or  vinlimited  by  other  liber- 
ties. It  is  through  society  and  through  law 
that  we  enjoy  those  individual  rights  which  are 
so  finely  adjusted  we  cannot  see  the  restraints, 
and  call  them  natural,  just  as  we  call  a  beef- 
steak natural,  though  it  is  the  result  of  long 
ages  of  fostering  care  applied  by  man  to  nature. 
This  principle  was  laid  down  by  Aristotle,  and 
has  been  well  developed  by  many  great  writ- 
ers :  — 

"There  is,  indeed,  no  doubt  that  a  wandering 
savage,  who  has  occupied  a  plot  of  ground,  jdos- 
sesses  the  power  of  using  his  limbs,  and  cultivating 


184  PROHIBITORY  LIQUOR  LAW. 

his  land ;  but  to  suppose  that  these  liberties  are, 
under  a  settled  government,  only  spared  by  the  leg- 
islature, and  not  created  and  secured  by  it,  betrays 
a  complete  misapprehension  of  legal  rights,  and  the 
acts  of  a  sovereign  body.  Under  an  established 
government,  no  absence  of  law  can  be  beneficial ; 
because  every  act  which  may  be  done  by  man  must 
be  either  permitted  or  prohibited  by  the  legislature. 
What  the  law  does  not  forbid  it  sanctions;  and 
will  protect  those  who  do  it  from  obstruction."  ^   , 

We  have  purposely  taken  the  broadest  pos- 
sible theory  of  social  rights,  that  we  might  show 
Burke's  meaning  when  he  says  that  a  bad  law 
in  a  good  government  is  the  worst  tyranny.  It 
is  because  law  has  so  wound  itself  in  with  every 
strand  of  civilization,  that  any  wrong  produced 
by  it  becomes  doubly  severe.  Some  things 
could  be  done  under  rude  civilizations  b}^  law, 
i.e..,  by  statute,  which  cannot  be  done  success- 
fully now.  Under  a  theocratic  rule  it  was 
easy  to  prevent  people  from  eating  pork ;  and 
that  seemed  to  be  a  wise  use  of  the  governing 
force  to  the  best  legislators  of  that  time.     What 

1  George  Cornewall  Lewis,  Use  and  Abuse  of  Political 
Terms,  p.  200. 


IMMORAL   LAW-MAKING.  185 

civilized  man  would  think  of  prohibiting  pork 
to-daj  ?  Yet  government  is  stronger  to-day 
than  it  was  under  a  theocracy.  It  has  grown 
stronger  by  relegating  certain  matters  to  the 
individual,  living,  as  we  have  described  above, 
in  an  atmosphere  of  law,  so  that  he  needs  no 
statutes  in  those  affairs.  His  food  and  drink, 
clothing  and  expenditure,  are  now  left  to  him 
who  is  a  law  unto  himself;  yet  all  these  mat- 
ters were  once  an  anxious  concern  to  the  legis- 
lator. Suppose  our  abstinence  friends,  or  any 
other  party,  should  enact  a  statute  that  no  per- 
son should  eat  over  eleven  ounces  of  meat  per 
diem.  In  itself,  it  would  probably  be  a  good 
regulation.  It  would  do  some  harm,  but  would 
injure  fewer  people  than  it  would  benefit  in  this 
American  world,  if  it  were  carried  out  by  every 
individual.  Such  a  statute  would  at  once  show 
the  limits  which  civilization  has  imposed  upon 
itself,  for  it  could  not  be  carried  into  effect. 
Voracious  eaters  would  be  hurt  by  the  tyranny, 
and  lesser  ones,  by  dreading  it,  would  feel  the 
same  sense  of  oppression.     A  father  of  a  family 


186  PROHIBITORY  LIQUOR  LAW. 

would  not  undertake  this  method  of  controlling 
eating ;  and  no  state  has  ever  possessed  power 
equal  to  the  paternal  for  controlling  individual 
action,  where  the  acts  are  numerous  and  fre- 
quent. Such  matters  in  a  higher  civilization 
have  passed  out  of  statute  law  into  that  higher 
moral  region  which  is  a  consequence  and  con- 
comitant of  law,  but  is  the  proper  home  of  the 
individual. 

Theocratic  legislators  overlook  this  principle, 
or  are  ignorant  Gi  it.  We  say,  Burke  would 
say,  a  law  ill-advised  and  badly  executed  is 
worse  than  the  crime  or  injuries  it  would  re- 
strain. They  say,  "  No.  God's  laws  stand  in 
statute,  though  they  are  constantl}^  broken ;  it 
is  our  duty  to  maintain  the  liquor  statute,  bro- 
ken or  not."  1 

The  difference  is  readily  comprehended  by  any 
one  not  blinded  by  his  prejudices.  Human  laws 
are  penal,  and  the  offender  escapes  the  penalty 
if  the  statute  is  badly  adjusted.  God's  laws 
are  vital,  and  carry  their  penalty  not  in  a  punish- 
1  Those  arguments  are  actually  used  in  Rhode  Island. 


IMMORAL  LAW-MAKING.  187 

ment,  but  in  a  consequence,  which  no  human 
being  ever  escaped  in  this  world,  whatever  the 
world  to  come  may  yield.  For  these  and  other 
obvious  reasons  wise  legislators  have  abandoned 
more  and  more  of  the  theocratic  grounds  of  law 
and  based  their  legislation  on  right  reason  and 
experience.  The  present  agitation  to  legislate 
God  into  the  Constitution  of  the  United  States 
is  an  example.  Common  sense  at  once  met  this 
effort  with  the  fact :  He  is  there  through  the 
great  fundamental  ideas  which  are  in  our  peo- 
ple ;  if  not  there  by  means  of  these,  you  cannot 
put  Him  there  by  statute  law. 

In  running  counter  to  these  great  truths,  — 
bloody  axioms  the  world  has  fought  out,  sweet 
axioms  it  has  unfolded  in  the  ways  of  peace,  — 
our  fanatical  friends  do  a  wrong  they  know  not 
of.  We  have  shown  these  liquor  statutes  to  be 
badly  grounded  in  law,  —  a  tyranny  possible 
only  through  the  irresponsibility  of  the  voting 
majority  ;  to  be  badly  executed,  actually  defied, 
and  maintained  because  they  are  so  easily  defied 
or  evaded.      Dr.  Miner  says :    "  If  the  Angel 


188  PROHIBITORY  LIQUOR  LAW. 

Gabriel  should  come  clown  to  earth  and  sell 
liquors  as  beverages,  he  would  not  lift  the  busi- 
ness up  to  heaven,  but  the  business  would  drag 
the  angel  down  to  hell."  ^  The  reason  of  this 
is  plain,  and  is  found  in  the  principle  Burke 
states.  The  better  the  social  system,  the  worse 
will  be  the  effect  of  a  bad  law.  A  home  may 
be  briefly  turned  into  a  hell  by  a  few  bad  princi- 
ples. 

It  is  no  figure  of  speech  that  when  you  make 
an  impossible  law  and  maintain  it  by  fraud  and 
tyranny,  you  make  a  hell  on  earth,  and  change 
an  angel  into  a  demon.  We  say  fraud  deliber- 
ately, for  up  to  this  point  we  have  treated  the 
prohibitionists  as  a  whole,  and  with  the  respect 
their  main  motive  entitles  them  to.  But  bad 
laws  do  not  stop  with  the  main  motive  ;  they 
drag  other  influences  in  their  train.  One  of 
the  worst  consequences  of  this  legislation  is  the 
wretched  puling  hypocrisy  which  it  directly 
creates  and  encourages.  In  our  first  chapter 
we  described  the  process  by  which  politicians 
1  Miner's  Argument,  p.  110. 


IMMORAL  LAW-MAKING.  189 

are  evolved  out  of  the  abstinence  pressure  when 
it  is  passing  from  the  moral  into  the  political 
sphere.  We  only  dwelt  on  the  necessary  results 
of  such  laws  in  that  view.  There  is  another 
view  which  people  who  uphold  these  statutes 
must  see  sooner  or  later.  There  is  a  strong 
appetite  for  liquors  diffused  in  society,  not  the 
.drunkard's  appetite,  but  that  more  potent,  be- 
cause unseen,  power  which  compels  many  re- 
spectable men  to  use  liquors.  Whether  it  be 
wise  or  unwise,  good  or  bad,  that  appetite 
remains,  and  will  not  be  abolished  by  a  statute 
law.  It  prevails  more  among  the  classes  which 
rule  society  and  manage  politics.  Relatively 
.we  mean,  and  not  in  disparagement  of  those 
classes.  Men  of  strong  natures,  natural  leaders 
in  small  communities,  abounding  in  animal 
spirits,  are  more  likely  to  drink  than  the  aver- 
age citizen,  the  average  conference  leader,  or 
Sunday-school  teacher.  These  men  govern  so- 
ciety so  far  as  administration  goes ;  they  always 
will  govern  it  in  some  waj^  or  other,  —  whether 
temperance,   know-nothingism,    or    anti-slavery 


190  PROHIBITORY  LIQUOR  LAW, 

prevails.  These  men,  whether  they  be  the 
Joneses  we  have  described,  or  the  men  who 
make  the  legislators,  the  ward-meeting  or  cross- 
road Warwicks,  are  driven  into  a  hypocritical 
obeisance  to  liquor  legislation,  whicli  is  false  ; 
they  are  absolutely  forced  into  a  legal  compli- 
ance and  a  public  phylactery  broadening,  even 
if  they  do  not  conceal  their  personal  habits, 
as  they  sometimes  do.  Add  to  this  element  of 
enforced  pharisaism  the  nasty,  foul,  hybrid 
creatures  who  feign  a  virtue  when  they  have 
it  not,  and  drink  secretly  while  in  public  they 
maintain  temperance,  prohibition,  total  absti- 
nence, and  the  semblance  of  any  virtue  their 
snivelling  natures  can  contain,  and  we  have  a 
nice  combination,  not  to  say  mixture,  for  the 
administration  of  law  or  "  positive  morality." 
Now,  what  sort  of  society  is  it  into  which 
these  influences  reach  ?  There  are  a  few  re- 
spectable and  honorable  dealers  left  in  the 
business  of  retailing  spirits.  The  number  of 
such  is  small  and  daily  gro^Ying  less,  while  the 
sum   of  sellers  grows  larger.     The  majority   of 


IMMORAL  LAW-MAKING.  191 

these  dealers  are  foreign-born,  and  bred  up  in 
the  manner  Dr.  Miner  describes,  under  the  in- 
fluences the  proliibitionists  have  created.  Their 
field  of  operations  is  among  aliens  and  Ameri- 
cans alike.  The  political  education  of  many  of 
our  citizens  to-day,  youthful  Americans  and 
the  adult  immigrants,  is  being  carried  forward 
in  a  society  which  knows  no  law  but  force, 
no  wisdom  but  cunning.  A  man  cannot  buy 
under  the  law  to-day  in  the  city  of  Provi- 
dence a  spoonful  of  liquor  to  drink,  nor  a  jug  of 
cooking  wine.  Yet  it  is  notorious  that  men  do  buy 
about  what  they  please,  if  they  desire  to  drink, 
and  are  not  of  the  very  small  class  who  regard  a 
prohibitory  law  as  binding.  Government,  law, 
social  order  itself,  touch  these  heedless  youth, 
and  these  old  children  coming  from  abroad, 
with  no  snfBcient  knowledge  of  the  sublime 
spirit  of  law  described  above ;  at  this  point  . 
where  their  passions  and  appetites  crop  out  in 
their  daily  living.  The  political  education  of 
these  foreigners,  and  of  such  Americans  as  fall 
under  the  same  influences,  is  largely  affected  by 


192  PROHIBITORY  LIQUOR  LAW. 

the  same  causes.  To  them  there  is  no  har- 
monious system  of  hiws  working  toward  better 
morals  in  the  community,  but  a  struggle  of  force 
with  natural  appetite.  Their  ears  are  closed  to 
reason,  their  consciences  dulled  to  moral  per- 
suasion, because  they  only  see  force  —  tyrannical 
force  —  bearing  down  a  traffic  which  to  them 
seems  legitimate,  —  which  is  legitimate  on  one 
side  of  the  law.  As  shown  previously,  the 
state  makes  the  liquors  propert}^,  people  all 
around  are  actually  drinking  them,  yet  the 
officers  of  the  law  are  at  work  in  spasmodic 
efforts  trying  to  destroy  property  which  is  con- 
demned by  the  moral  sentiment  of  a  party  in 
the  state,  while  it  has  not  lost  its  character  and 
its  rights  under  the  common  law  of  the  land. 

What  notions  of  property  of  social  order  and 
of  right  must  a  man  receive,  who  for  years  is 
passing  through  such  experience.  If  society 
steadily  adhered  to  the  prohibition  principle, 
and  faithfully  worked  it  out,  the  result  would 
be  bad  enough.  For  the  reasons  given  in  an 
early  chapter,  they  have  not  been  steady  nor 


IMMORAL  LAW-MAKING.  193 

faithful,  and  never  will  be.  Like  causes  pro- 
duce like  efPects.  Until  the  habits  of  the  people 
change,  these  laws  must  always  be  log-rolled 
through  other  political  interests.  They  will 
be,  as  they  have  generally  been,  adroit  political 
speculations,  partially  executed  in  spasms,  then 
neglected  when  the  temporary  enthusiasm  has 
cooled. 

One  of  the  latest  English  writers  thus  dis- 
courses on  the  crimes  legislation  creates  within 
the  state.  If  he  had  written  with  the  experi- 
ence of  our  liquor  legislation  before  him,  he 
could  hardly  have  characterized  it  more  ex- 
actly :  — 

"  The  creation  of  artificial  crimes,  and  the  conse- 
quent reckless  onslaught  on  pubUc  liberty,  form  the 
most  perilous  temptations  to  which  a  modern  states- 
man is  exposed.  The  ignorance  and  the  unhappy 
l^erverseness  of  the  bulk  of  the  population  is  still  so 
considerable  in  modern  states,  that  they  present  no 
barrier  against  the  most  enticing  and  hazardous 
political  experiments,  while  they  offer  the  most 
ready  though  treacherous  arguments  for  the  stern 
necessity  of  having  recourse  to  those  experiments. 
9  M 


194  PROHIBITORY  LIQUOR  LAW. 

The  inevitable  result  is  general  paralysis  of  moral 
responsibility ;  executive  tyranny  in  obscure  places, 
and  practised  especially  on  classes  of  persons  unable 
to  attract  public  attention  for  their  defence ;  a  servile 
habit  of  reliance  on  government  for  the  instant 
remedy  of  every  evil,  —  including  those  which  are 
the  direct  consequences  of  voluntary  vice  or  self- 
indulgence  ;  and  the  existence  of  a  wide-spread  net- 
work of  police  inspection  and  espionage^  sapping  the 
essential  vital  force  of  a  free,  self-reliant,  and  self- 
respecting  national  life."  ^ 

This  corruption  of  legislation,  this  administer- 
ing of  moral  purposes  in  such  manner  that  they 
develop  immoral  results,  is  a  modern  innovation. 
It  is  one  of  the  final  issues  of  party  politics. 

Hear  what  De  Tocqueville  said  about  1832 :  — 

"  Hitherto  no  one  in  the  United  States  has  dared 
to  advance  the  maxim  that  every  thing  is  permissi- 
ble for  the  interests  of  society,  —  an  impious  adage, 
which  seems  to  have  been  invented  in  an  age  of 
freedom  to  shelter  all  future  tyrants.  Thus,  while 
the  law  permits  the  Americans  to  do  what  they 
please,  religion  prevents  them  from  conceiving,  and 
forbids  them  to  commit  wdiat  is  rash  or  unjust." 

1  Sheldon  Amos,  Systematic  View  of  Jurisprudence,  p.  514.. 


IMMORAL  LAW-MAKING.  195 

"VYe  have  changed  all  that  bravely.  Now  we 
have  whole  religious  organizations  pressing  for- 
ward tj'rannical  laws,  and  devout  apostles  of 
finance,  wdth  politico-ecclesiastical  machinery, 
forcing  lobby-granted  railway  bonds  on  credu- 
lous people. 

We  do  not  mean  to  mix  inconsequent  topics, 
but  we  must  consider  whither  we  drift,  and  that 
all  these  symptoms  show  diseases ;  not  neces- 
sarily one  disease,  but  the  different  disorders 
are  more  or  less  related.  Remember  that  the 
solvency  of  law  is  in  the  moral  strength  of  the 
community,  and  at  this  moment  we  cannot  afford 
to  waste  an  atom  of  moral  force  in  the  mainte- 
nance of  bad  laws.  The  harm  these  worthy 
persons  have  done  the  State  b}^  pushing  their 
good  intentions  beyond  their  legitimate  sphere, 
is  something  which  has  not  yet  borne  all  its 
fruits,  and  which  must  be  grappled  with  before 
it  is  too  late.  A  great  philosopher  said  men 
should  possess  a  certain  •' indifferency "  before 
they  could  pursue  ethical  truth  with  any  ad- 
vantage to  themselves  or  their  fellows.     As  we 


196  PROHIBITORY  LIQUOR  LAW. 

understand  moral  science,  a  man,  be  he  clergy- 
man, lawyer,  merchant,  or  daj-laborer,  will  make 
a  poor  decision  in  a  matter  pertaining  to  public 
morals,  unless  his  mind  be  open  and  free  to  re- 
ceive all  possible  knowledge  from  without  his 
own  special  province.  Few  of  us  can  grasp  the 
details  of  law,  social  science,  or  theology ;  but 
any  intelligent  person  can  acquire  the  general 
and  leading  principles  which  ^^i^evail  in  the 
knowledge  of  his  time.  He  is  then,  if  candid 
and  earnest,  in  fit  condition  to  hear  and  decide 
an  ethical  question,  which,  as  between  man  and 
man,  is  the  sum  of  knowledge  or  the  province  of 
wisdom.  Any  one  of  us  should  pursue  his  own 
personal  interests,  liis  likes  and  dislikes,  his  am- 
bitions and  pleasures,  with  the  ardent  force  of 
an  honest  advocate.  This  gives  life  and  energy 
to  society  as  a  whole,  everybody  is  alive,  as  Ave 
say.  When  these  interests  pass  beyond  himself 
and  affect  others  directly,  as  when  he  votes, 
serves  on  a  jury,  administers  an  estate,  acts 
on  a  committee,  although  he  is  the  same  man, 
other   relations   affect   his    moral    state.      The 


IMMORAL   LAW-MAKING.  19T 

legitimate  passion  of  self  sobers  into  the  ethical 
opinion  which  reaches  beyond  himself  and  puts 
him  into  the  attitude  of  a  quick-eared  but  steady- 
minded  judge,  to  carry  out  the  figure  with  which 
we  began. 

Instead  of  that,  a  certain  class  of  persons, 
frequent  in  every  community,  as  Locke  says, 
"begin  with  espousing  the  well-endowed  opin- 
ions in  fashion ;  and  then  seek  arguments  to 
show  their  beauty,  or  to  varnish  and  disguise 
their  deformity." 

This  is  the  precise  attitude  which  the  temper- 
ance party  has  held  toward  other  moral  ques- 
tions for  some  thirty  years.  The  writer  has 
conversed  with  many  sincere  total  abstinence 
men,  who  sadly  admitted  they  had  no  hope  in 
liquor  laws,  yet  confessed  that,  whenever  they 
differed  with  their  associates,  they  were  classed 
at  once  with  free  rum  and  the  Sons  of  Belial. 
An  end  must  come  to  this  social  despotism. 
Our  quarrel  with  the  prohibitionists  goes  far 
be3^ond  the  superficial  statutes  they  enact.  We 
arraign  them  at  the  bar  of  justice  for  the  deceit 


198  PROHIBITORY  LIQUOR  LAW. 

and  truckling  cowardice  they  bring  into  social 
living,  the  disorder  and  confusion  they  drag 
into  the  ethics  of  law.  We  do  not  mean  to 
overwhelm  the  reader  with  citations  from  Dr. 
Miner's  argument;  but  he  is  a  representative 
man,  and  the  position  and  influence  of  ordinary 
and  worthy  prohibitionists  can  only  be  under- 
stood when  their  principles  are  worked  out  in 
full  statement. 

"How  shall  we  explain  the  fact  that  so  many 
godly  men,  conscientious  men,  are  in  this  error? 
...  I  solemnly  aver  before  you  that,  if  any  man  — 
any  young  man  especially  —  steps  into  a  Boston 
pulpit  and  is  silent  for  six  months  on  this  question 
of  the  character  of  the  liquor  traffic,  he  will  find 
himself  surrounded  by  a  class  of  wealthy  men,  who. 
will  invite  him  to  their  homes,  seduce  Lira  by  the 
wine-cup,  and  lay  him  under  obligation  in  a  thou- 
sand ways.  Whenever  he  finds  himself  degraded  to 
this  humiliating  condition,  though  he  may  remain  in 
the  pulpit,  he  has  ceased  to  be  a  minister  of  God."  ^ 

Who  are  these   men,  clergymen  and  others, 

he   puts   into   the   same    category?     The  E,ev. 

Doctors     Adams,     Leonard     Bacon,     Blagden, 

1  Miner's  Argument,  p.  70. 


IMMORAL  LAW-MAKING.  199 

Hedge,  Neale,  Bishop  Eastburn ;  Governors 
Andrew,  Cliffoid,  and  Washburn  ;  Agassiz : 
Doctors  Bowditch,  Charles  T.  Jackson,  Hohiies, 
H.  J.  Bigelow,  Clarke ;  citizens  Norcross,  Lin- 
coln, Duncan,  and  a  hundred  others.  These  men 
are  among  the  topmost  in  their  several  vocations, 
and  their  professions  cover  nearly  all  the  lines 
of  our  social  life.  They  are  the  flower  of  New 
England,  in  so  far  as  its  blossoms  can  be  gath- 
ered in  one  community.  The  pivots  on  which 
your  living,  good  reader,  and  my  living  turns ; 
the  models  to  which  we  shall  point  our  children, 
and  ask  them  to  imitate.  For  character  far 
away  affects  us  little  ;  it  is  the  men  of  our  own 
time  who  impress  themselves  on  us  and  on  those 
coming  next  after.  These  men,  and  others  like 
them,  make  our  manners,  in  the  higher  sense, 
in  which  these  are  the  fruit  of  the  man,  and  not 
merely  an  external  form  or  temporary  custom. 
LegisLite,  cultivate,  theorize  as  you  will,  it  is  in 
the  best  men  and  women  of  the  day  humanity 
finds  itself,  and  seeks  to  know  and  improve 
itself.     Is  it  good  law,  good  morals,  good  relig- 


200  PROHIBITORY  LIQUOR  LAW. 

ion,  which  reviles  these  illustrious  citizens  and 
holds  them  up  for  execration,  because  their 
opinion  in  a  matter  of  diet  and  social  habit  or 
political  action  differs  from  another  respectable 
party  of  voters  and  moralists  ?  A  petty  spirit, 
narrowing  dail}^,  accelerating  through  our  social 
mechanisms,  impels  the  average  unthinking  mor- 
alist to  enforce  his  social  or  political  hobby  on 
those  unlike-  himself.  Is  this  a  process  which 
will  breed  nobler  and  better  men  ?  Are  we  so 
rich  in  heroes  that  we  need  no  more  Andrews 
or  Agassizs  in  this  western  world  ? 

This  great  theme  —  the  essential  dignity  and 
moral  worth  of  human  law  —  cannot  be  reached 
in  a  paragraph,  nor  dismissed  in  a  volume. 
That  view  of  it  we  have  attempted  to  set  forth 
—  its  partial  relation  with  moral  reform  and 
humane  impulse  —  is  far-reaching  and  widely 
extended.  No  one  person  can  grasp  the  whole 
topic;  but  we  claim  that  we  have  established 
certain  principles,  both  by  the  facts  of  experi- 
ence and  by  those  dictates  of  reason  which  con- 
trol the  nature  of  hxw,  and  ultimately  control 
governmental  action. 


^  IMMORAL  LAW-MAKING.  201 

If  the  narrow  theory  of  abstinence  ever  be- 
comes the  common  basis  of  social  life,  the  result 
must  come  through  the  agency  of  the  individual 
acting  on  his  fellows  in  ethical  effort.  Any 
civil  pressure  instituted  to  forward  such  result 
would  not  hasten  but  retard  it.  The  individ- 
ual must  have  his  freedom,  even  to  injure  him- 
self, and  must  not  be  restrained  until  his  acts 
directly  injure  other  persons.  This  gives  the 
individual,  while  he  has  his  senses,  the  right  of 
drinking,  and  forbids  the  state  from  entirely 
cutting  off  the  supply  of  liquors  or  from  prohi- 
bition. In  the  second  place,  if  temperance  in 
drinking  liquors  continues  to  be,  as  it  has  been, 
the  social  habit  of  a  large  majority  of  the  people, 
it  must  allow  an  equal  freedom  to  the  individ- 
ual. The  individual  cannot  be  cut  off  from  his 
normal  activity  because  social  good  may  in  an 
uncertain  contingency  be  harmed.  His  normal 
act  must  be  wrong,  or  directly  harmful  in  its 
effects,  before  the  law  can  justly  interfere  and 
stop  him.  If  society  passes  beyond  this  limit 
and  oppresses  the  individual,  it  transcends  its 
9* 


202  PROHIBITORY  LIQUOR  LAW. 

own  laws  of  being,  for  it  was  created  to  de- 
velop the  individual.  When  it  loses  this  per- 
cejDtion  and  oppresses  him,  it  finally  loses  its 
vital  force  and  extinguishes  itself:  for  there 
can  be  no  society  without  individuals ;  an  indi- 
vidual might  exist  without  society,  but  a  society 
without  individuals  would  be  impossible.  This 
principle  is  the  foundation  of  justice,  which,  as 
Madison  says,  is  the  end  and  aim  of  all  societies .j 
No  part  of  any  structure  is  comparable  to  its^ 
foundation  ;  we  can  change  any  part ;  the 
groundwork  sustains  the  whole,  and  cannot 
in  itself  be  changed.  All  the  benevolence  of 
an  angel  could  not  alter  these  principles.  An 
individual  can  save  himself,  his  fellow  can  save 
him,  if  the  benevolent  impulse  is  wisely  di-. 
rected.  An  individual  is  in  some  respects 
greater  than  the  state.  But  the  nature  of 
justice  cannot  be  altered  by  benevolence. 
Justice  can  move  all  else,  itself  excepted.  Dr. 
Winship  could  lift  nine  hundred  pounds ;  he 
could  not  lift  his  own  feet.  The  basis  is  im- 
movable ;  humanity  must  rest  somewhere  in  its 


IMMORAL  LAW-MAKING.  203 

physical  action,  and  God  has  given  us  no  surer 
ground  than  justice ;  mercy  may  temper,  it 
cannot  change  the  nature  of  justice. 

The  cause  of  the  failure  of  the  prohibitory 
statutes  is  not  in  their  parts ;  it  is  not  because 
the  quantity  prohibited  is  too  large  or  too  small, 
the  fines  and  imprisonment  too  lenient  or  too 
severe,  the  officers  of  state  too  slow  or  too  quick, 
—  it  is  in  their  whole,  in  the  basis  of  the  laws 
themselves.  They  are  unjust.  The  law  is  a  lie  ; 
whenever  it  attempts  to  execute  itself,  it  lies 
and  deceives.  To  say  that  worthy  citizens  have 
made  up  their  minds  they  will  have  such  laws, 
does  not  change  their  nature.  The  American 
people  had  made  up  their  mind  in  immense 
majority  that  they  would  maintain  slavery  about 
the  year  1852.  Did  that  change  the  nature  of 
justice  ?     How  long  did  slavery  last  ? 

Our  prohibitory  statute-makers,  working  on  a 
benevolent  motive,  have  debauched  politicians, 
corrupted  legislatures,  and  soiled  the  processes 
of  courts,  in  the  administration  of  these  laws. 
This  is  disorder,  and  society  should  be  in  itself 


204  PROHIBITORY  LIQUOR  LAW. 

the  highest  order.     The  broad  and  loyal  Rich- 
ard Hooker  says :  — 

"  Wherefore  that  we  may  briefly  end  ;  of  law  there 
can  be  no  less  acknowledged  than  that  her  seat  is 
the  bosom  of  God,  her  voice  the  harmony  of  the 
world ;  all  things  in  heaven  and  earth  do  her  hom- 
age, the  very  least  as  feehng  her  care,  and  the  great- 
est as  not  exempted  from  her  power ;  both  angels 
and  men  and  creatures,  of  what  condition  soever, 
though  each  in  different  sort  and  manner,  yet  all 
with  uniform  consent,  admiring  her  as  the  motlier  of 
their  peace  and  joy." 

Appetite  is  one  of  the  lowest  and  meanest  of 
divine  creations;  yet  what  creature  exists  with- 
out it,  what  action  can  accomplish  itself  which 
goes  not  hand  and  hand  with  it?  Life,  the  very 
emanation  of  divine  being,  is  itself  chained  to  it ; 
a  royal  master  ever  depending  on  this  perpetual 
slave.  It  is  the  intention  and  aim  of  man  to 
live,  but  the  motive  impulse  to  that  living  is  in 
the  spring  of  the  appetite.  Physical  destruction 
of  appetite  is  physical  death. 

In  the  moral  world,  the  state  can  regulate  and 
care  for  appetite  ;  it  cannot  kill  that  meanest 


IMMORAL  LAW-MAKING,  205 

creature  of  God.  When  the  harmony  of  law  is 
broken,  when  power  attempts  this  ethical  mur- 
der, the  little  creature  outdoes  mighty  states, 
for  it  rests  itself  on  that  pure  justice  which  is 
in  the  beino:  of  God  ! 


APPENDIX. 


THERE  is  no  complete  and  harmonious  statG* 
ment  of  the  rehation  of  alcohol  to  the  animal 
economy  to  be  found.  The  people  have  an  old 
and  common  saying  that  "  wine  is  the  milk  of  old 
age."  They  do  not  say  that  it  is  cow's  milk,  nor 
that  old  age  needs  a  poison  to  nourish  it.  On  the 
other  hand,  the  universal  word  "  intoxicated  "  means 
poisoned ;  and  it  is  almost  certain  that  when  a  man 
is  overdosed  with  liquor  he  is  as  if  he  were  poisoned. 
These  two  conclusions  of  the  common  mind  —  first, 
that  it  is  almost  a  food,  and  second,  that  it  becomes 
in  excess  as  dangerous  as  a  poison  —  are  very  near 
to  the  scientific  conclusions  which  we  must  draw 
from  the  excerpts  which  follow,  and  which  are 
drawn  from  the  most  weighty  authorities. 

The  following  propositions  represent  fiirly,  as  we 
believe,  the  present  stAte  of  physiological  knowledge 
on  this  subject :  — 

I.  Alcohol  is  a  substance  which  is  used  in  the 
animal  economy,  and  not  wholly  eliminated.  The 
conditions  of  this  use,  or  its  exact  mode  of  working 
in  the  body,  are  in  doubt. 


208  PROHIBITORY  LIQUOR  LAW. 

II.  The  question  whether  it  acts  as  a  positive  food 
or  a  stimulant  is  in  doubt.  Late  investigators  lean 
more  and  more  toward  the  food  theory. 

III.  Most  authorities  agree  that  in  moderate  doses 
it  diminishes  bodily  waste,  like  tea  and  coffee.  Some, 
however  (including  among  these  advocates  of  the 
food  theory),  hold  that  tea  and  coffee  do  not  dimin- 
ish waste,  and  they  put  alcohol  into  the  same  class. 

We  are  permitted  to  cite  from  studies  made  by 
Mr.  Amasa  M.  Eaton :  — 

"  In  one  sense,  alcohol,  that  is,  pure  alcohol,  is  a 
poison ;  but  the  confusion  here  consists  in  having 
two  meanings  in  mind,  and  in  passing  nnconsciously 
from  one  to  the  other,  supposing  both  to  be  alike. 
Dr.  Percy  ('An  Experimental  Enquiry  concerning 
the  Presence  of  Alcohol  in  the  Ventricles  of  the 
Brain,'  &c.,  London,  1839)  injected  from  two  to  four 
ounces  of  strong  alcohol  into  the  stomachs  of  dogs. 
Death  followed,  as  well  it  might,  the  alcohol  he  used 
containing  about  eighty  per  cent  of  absolute  alco- 
hol. The  strongest  brandy  and  whiskey  contain  but 
fifty-four  per  cent  of  alcohol.  The  same  quantity 
of  solutions  of  this  strength  of  tobacco,  tea,  coffee  — 
perhaps  even  of  salt  —  would  produce  the  same  re- 
sult; but  as  this  is  not  the  form  or  manner  in  which 
alcohol  is  ever  administered,  no  reasoning  can  be 
drawn  from  such  results.  That  pure  alcohol  (like 
many  other  substances,  if  taken  pure,  but  which 
never  are  so  taken)  is  a  poison,  is  a  statement  there 
is  no  use  in  proving  or  adducing  as  evidence,  for 
none  will  deny  it. 


APPENDIX.  209 

"Lallemand,  Perrin,  and  Duroy  ('Du  Role  de 
I'Alcohol  et  des  Anesthetiques  dans  I'Organisme,' 
Paris,  1860)  are  advocates  of  total  elimination,  in 
which  view  they  are  supported  by  many  others,  but 
not  by  the  latest  experimenters.  To  the  same  effect 
is  Dr.  Victor  Subbotin,  in  the  '  Zeitschrifb  fiir  Bio- 
logic,' Heft  IV.  On  the  other  hand,  Dr.  Anstie 
('  Stimulants  and  Narcotics,'  and  in  various  articles 
in  the  Medical  Journals),  after  experiments  made  in 
consequence  of  Lallemand,  Perrin,  and  Duroy's  re- 
sults, came  to  the  conclusion  that  the  original  com- 
mon opinion  was  right,  and  that  only  a  small  portion 
of  any  alcohol  taken  is  eliminated  unaltered.  These 
results  have  been  confirmed  by  Dupre  ('  On  the 
Elimination  of  Alcohol,'  read  before  the  Royal  So- 
ciety, of  Avhich  ah  abstract  may  be  found  in  '  The 
Practitioner '  for  March,  1872). 

"  '  First.  The  amount  of  alcohol  eliminated  per 
day  does  not  increase  with  the  continuance  of  the 
alcohol  diet;  therefore  all  the  alcohol  consumed 
daily  must,  of  necessity,  be  disposed  of  daily ;  and 
as  it  certainly  is  not  eliminated  within  that  time,  it 
must  be  destroyed  in  the  system. 

"'Second.  The  elimination  of  alcohol  following 
the  taking  of  a  dose  or  doses  of  alcohol  is  completed 
twenty-four  houi-s  after  the  last  dose  of  alcohol  has 
been  taken. 

"'Third.  The  amount  of  alcohol  eliminated  in 
both  breath  and  urine  is  a  minute  fraction  only  of 
the  amount  of  alcohol  taken.' 

"  Still  more  to  the  point  are  the  experiments  and 


210  PROHIBITORY  LIQUOR  LAW. 

results  of  Dr.  Hammond  ('Effects  of  Alcohol  on  the 
Nervous  System  —  Inaugural  Address  as  President 
of  the  Neurological  Society  of  New  York,'  publislied 
in  'The  Psychological  and  Medico-Legal  Journal' 
for  July,  1874),  He  pei'formed  three  series  of  exper- 
iments on  himself,  taking  alcohol,  first,  when  the 
food  taken  was  just  sufficient  for  the  wants  of  the 
organism;  second,  when  it  was  not  sufficient;  and 
tliird,  when  it  was  more  than  sufficient.  Of  course 
I  have  not  space  here  to  give  any  sufficient  explana- 
tion of  these  and  other  experiments  made,  as  quoted 
above.  For  all  details  I  must  refer  the  curious  reader 
to  the  memoirs  cited.  Dr.  Hammond  says,  in  sum- 
ming up;  '  After  such  results,  are  we  not  justified  in 
regarding  alcohol  as  food  ?  If  it  is  not  food,  what 
is  it  ?  We  have  seen  that  it  takes  the  place  of  food, 
and  that  the  weight  of  the  body  increases  under  its 
use.  Any  substance  wdiich  produces  the  effects 
which  we  have  seen  to  attend  on  the  use  of  alcoliol 
is  essentially  food,  even  although  it  is  not  demon- 
strable at  present  that  it  undergoes  conversion  into 
tissue.  If  alcohol  is  not  entitled  to  this  rank,  many 
substances  which  are  now  universally  placed  in  the 
category  of  aliments  must  be  degraded  from  their 
positions.' 

"'Alcohol  retards  the  destruction  of  the. tissues. 
By  this  destruction  force  is  generated,  muscles  con- 
tract, thoughts  are  developed,  organs  secrete  and 
excrete.  Food  supplies  the  material  for  new  tissue. 
Now,  as  alcohol  stops  the  full  tide  of  this  decay,  it 
is  very  evident  that  it  must  furnish  the  force  which 


APPENDIX.  211 

is  developed  under  its  use.  How  it  does  this  is  not 
clear.  But  it  is  not  clear  how  a  piece  of  iron  deflects 
a  magnetic  needle  when  held  on  the  opposite  side 
of  a  stone  wall  or  a  feather  bed.  Both  circum- 
stances are  ultimate  ficts,  which,  for  the  present  at 
least,  must  satisfy  us.  That  alcohol  enters  the  blood 
and  permeates  all  the  tissues,  is  satisfactoiily  j^roven. 
Lallemand,  Perrin,  and  Duroy  contend  that  it  is 
excreted  from  the  system  unaltered.  If  this  were 
true  of  all  the  alcohol  ingested,  its  action  would  be 
limited  to  its  effects  upon  the  nervous  system,  pro- 
duced by  actual  contact  with  the  nervous  tissues ; 
but  there  is  no  more  reason  to  suppose  that  all  the 
alcohol  taken  into  the  system  is  thus  excreted  un- 
altered from  the  body,  than  there  is  for  supposing 
that  all  the  carbon  taken  as  food  is  excreted  from 
the  skin  and  lungs  as  carbonic  acid.  It  is  not  at 
all  improbable  that  alcohol  itself  furnishes  the  force 
directly,  by  entering  into  combination  with  the  first 
products  of  tissue  decay,  whereby  they  are  again 
assimilated,  without  being  excreted  as  urea,  uric 
acid,  &c.  Many  of  these  bodies  are  highly  nitro- 
genous, and  under  certain  circumstances  might  yield 
their  nitrogen  to  new  tissues.  Upon  this  hypothesis, 
and  upon  this  alone,  so  far  as  I  can  perceive,  can  be 
reconciled  the  facts  that  an  increase  of  force  and  a 
diminution  of  the  products  of  the  decay  of  tissue 
attend  uporx  the  ingestion  of  alcohol.'  .  .  . 

" '  It  would  be  only  fair  to  ask  me  what  consti- 
tutes excess?  and  if  you  did,  I  should  answer  that, 
in  the  abstract,  I  do  not  know,  any  more  than  I 


212  PROHIBITORY  LIQUOR  LAW. 

know  how  much  tea  or  coffee  any  one  of  you  can 
drink  with  comfort  or  advantage ;  how  many  cigars 
you  can  smoke  without  passing  from  good  to  bad 
effects;  how  much  mustard  on  your  beef  agrees  with 
you,  or  how  much  disagrees;  or  how  much  butter 
you  can  eat  on  your  buckwheat  cakes.  In  fact,  I 
do  not  know  that  you  can  use  any  of  these  things 
without  injury ;  for  to  some  persons  tea  and  coffee 
and  tobacco  and  mustard  and  butter  are  poisonous. 
Every  person  must,  to  a  great  extent,  be  a  law  unto 
himself  in  the  matter  of  his  food ;  no  one  can  a 
priori  tell  him  what  and  how  much  are  good  for 
him.  A  single  glass  of  wine  may  be  excess  for  some 
individuals,  while  to  others  it  fills  a  role  which  noth- 
ing else  can  fill.  That  alcohol  even  in  large  quanti- 
ties is  beneficial  to  some  persons  is  a  j^oint  in  regard 
to  which  I  have  no  doubt ;  but  these  persons  are 
not  in  a  normal  condition,  and  when  they  are  re- 
stored to  health  their  potations  should  cease.' 

"Dr.  Curtis,  of  New  York,  says:  'In  ordinary 
amounts  alcohol  is  wholly  consumed,  transformed  in 
the  system,  and,  by  the  nature  of  its  chemical  com- 
position, is  capable,  like  certain  elements  of  ordinary 
food,  of  thus  yielding  force  which  can  be  used  by 
the  economy  to  do  life-work,  ttc.  And  thus,  within 
certain  limits  of  dose,  alcohol  is  transformed  like 
ordinary  food  in  the  system  without  producing  any 
injurious  effects,  and,  yielding  useful  force  for  the 
purposes  of  the  economy,  must  be  considered  as  a 
food  in  any  philosophical  sense  of  the  word.'  I 
wish  to  call  particular  attention  to  what  he  further 


APPENDIX.  213 

says:  'It  is  an  important  point  to  know,  and  one 
little  understood,  that  this  food-action  is  attended 
with  no  exciting  or  intoxicating  influence ;  but  the 
whole  effect,  like  that  of  ordinary  food,  is  seen  in  the 
maintenance  or  restoration,  according  to  circum- 
stances, of  that  balance  of  function  called  health. 
But  if  taken  in  greater  quantity  than  can  be  utilized 
as  a  force-yielding  food,  the  excess  of  alcohol  acts  as 
a  poison,  producing  a  well-known  train  of  perturba- 
tions of  function.  All  signs  of  departure  from  the 
natural  condition  in  the  drinker,  from  the  first  flush- 
ing of  the  cheek,  brightening  of  the  eye,  and  un- 
natural mental  excitement,  to  the  general  paralysis 
of  complete  drunkenness,  belong  equally  to  the  poi- 
sonous eflect  of  alcohol.  Even  the  early  phases  of 
alcoholic  disturbance,  which  are  often  iaiproperly 
called  "  stimulating,"  are  part  and  parcel  of  the 
injin-iously  disturbing  influence  of  overdosage,  and 
must  be  put  in  the  same  category  with  the  more 
obviously  poisonous  effects  of  pronounced  intoxi- 
cation. Alcohol  has  thus  a  twofold  action.  First, 
it  is  capable,  in  proper  doses,  of  being  consumed 
and  utilized  as  a  force-producer ;  in  which  case 
there  is  no  visible  disturbance  of  normal  function. 
Such  action  cannot  be  distinguished,  either  by  the 
drinker  or  the  physiologist,  from  that  of  a  quickly 
digestible  fluid  food,  and  is  no  more  an  "  excitement " 
or  "  stimulation,"  followed  by  a  "  recoil  "  or  "  depres- 
sion," than  is  the  action  of  a  bowl  of  hot  soup  or  a 
glass  of  milk.  The  second  action  is  the  poisonous 
influence  of  an  excess  of  alcohol  circulating:  in  the 


214  PROHIBITORY  LIQUOR  LAW. 

blood,  which  makes  itself  sensible  to  the  drinker  by 
peculiar  sensations  and  disturbances,  and  is  not  only 
followed  by  "  depression,"  but  is  itself  a  form  of  de- 
pression,—  that  is,  a  disturbance  of  balance;  an 
unnatural  perturbation  of  the  normal  working  of 
the  functions.' 

"  Abstinents  are  very  fond  of  quoting  the  fact  that 
alcohol  may  be  found  in  the  brain  of  a  person  who 
has  died  from  excessive  drinking ;  but,  as  Dr.  Ham- 
mond pertinently  says :  '  The  amount  of  essential  oil 
present  in  onions  is  far  less  in  proportion  than  the 
quantity  of  alcohol  contained  in  the  mildest  wines ; 
and  yet  we  cannot  eat  an  onion  without  this  oil 
passing  into  the  blood,  and  impregnating  the  air 
expired  in  respiration  with  its  peculiar  odor.  Doubt- 
less the  brain  of  a  person  who  has  dined  heartily  on 
onions  would  exhale  the  characteristic  odor  of  the 
vegetable.' 

"  Chronic  alcoholic  intoxication  would  rarely,  if 
ever,  ensue  from  the  moderate  use  of  pure  light 
'vvines  or  malt  liquors.  But  it  is  impossible  to  get 
pure  wine.  It  is  not  generally  known  that  all  the 
foreign  wines  sold  in  this  country  are  made  stronger 
by  the  addition  of  alcohol,  before  or  after  importa- 
tion, to  suit  the  strong  taste  of  the  American  market. 
Some  of  the  choicest  wines,  when  pure,  do  not  con- 
tain more  than  six  to  ten  ])er  cent  of  alcohol,  —  no 
more  than  good  cider,  —  and  no  wine  can,  by  fer- 
mentation only,  be  made  to  contain  more  than 
seventeen  per  cent  of  alcohol.  All  over  this  is 
added,  even  if  there  be  no  other  adulteration.     And 


APPENDIX.  215 

the  amonnt  and  quality  of  this  adulteration  is  fear- 
ful. For  details  I  must  refer  to  the  standard  Toxi- 
cologys,  such  as  Christison,  Wetheibeo,  and  others, 
and  Hassall  and  others  on  the  'Adulterations  of 
Food,'  and  to  a  summary  in  '  Alcohol,  its  Combi- 
nations, Adulterations,  and  Physical  Eifects,'  by  Col. 
Dudley,  just  published. 

"  If  the  so-called  temperance  party,  instead  of 
"vninly  attempting  to  prohibit  the  sale  of  liquors, 
regardless  of  what  may  be  consumed  outside  of 
retail  stores,  would  help  to  educate  the  people  as  to 
the  adulterations  now  used  in  all  wines,  and  would 
supply  them  with  pure  wine  of  the  natural  strength, 
wdth  no  alcohol  added,  they  would  accomplish  more 
than  they  have  yet  accomplished  in  aiding  the  sup- 
pression of  intemperance ;  for  the  instinct  to  drink 
something  stimulant  exists,  and  will  exist,  and  mjght 
as  well  be  recoo^nized.  It  is  useless  to  iofnore  it  or 
to  attempt  to  destroy  it.  It  exists  in  every  people 
the  world  over." 

The  very  delicate  question  whether  alcohol  is  a 
food  or  a  stimulant  receives  some  light  from  the 
following  statement  of  Dr.  Bowditch.  Professor 
Voit's  authority  in  these  matters  is  second  to  none :  — • 

"ALCOHOL   AS   A  NUTRITIVE   AGENT. 

"  By  H.  P.  BowDiTcn,  M.D.,  Boston.     Head  before  the  Boston 
Society  of  Medical  Sciences. 

"The  experiments  of  Dr.  Subbotin^  were  per- 
formed   on   rabbits   enclosed   in   an   apparatus,  by 

1  On  the  physiological  importance  of  alcohol  for  the  animal 
organism.     Zeitschrift  fiir  Biologie,  vii.  361. 


216  PROHIBITORY  LIQUOR  LAW. 

means  of  which  the  exhalations  of  the  skin  and 
lungs  could  be  examined  for  alcohol.  The  urine 
was  also  collected  and  examined  for  the  same  sub- 
stance. 

"The  experiments  showed  that,  in  the  first  five 
hours  after  the  introduction  of  3.45  grammes  of 
alcohol  into  the  stomach  of  a  rabbit,  about  2  per 
cent  was  eliminated  by  the  kidneys,  and  5  per  cent 
by  the  lungs  and  skin. 

"Experiments  extending  over  a  greater  length  of 
time  led  to  the  conclusion  that,  usually,  during 
twenty-four  hours,  at  least  16  per  cent  of  tlie  in- 
jected alcohol  leaves  the  body  in  an  unchanged  con- 
dition (or  perhaps  as  aldehyde),  and  that  besides 
this  elimination  by  lungs,  skin,  and  kidney,  a  portion 
of  the  alcohol  is  oxidized  in  the  organism.  Although 
by  this  oxidation  force  must  be  set  free  in  the  organ- 
ism, the  author  does  not  consider  that  alcohol  is  on 
that  account  to  be  regarded  as  a  nutriment,  for  the 
functions  of  the  animal  body  depend  for  their  per- 
formance, according  to  Dr.  S.,  upon  the  transforma- 
tion of  living  material,  i.e.,  of  the  constituent  parts 
of  the  body,  and  not  upon  the  decomposition  of 
matter  foreign  to  the  body. 

"In  a  note  appended  to  Dr.  Subbotin's  essay, 
Professor  Voit  expresses  himself  as  follows:  'I  do 
not  agree  entirely  with  Dr.  Subbotin  in  his  views 
on  the  importance  of  alcohol  as  a  nutriment.  I  de- 
fine a  nutriment  as  a  substance  which  is  capable  of 
furnishing  to  the  body  any  of  its  necessary  constitu- 
ents, or  of  preventing  the   removal   of  such  con- 


APPENDIX.  217 

stituents  from  the  body.  To  the  first  class  belong 
such  substances  as  albumen  (since  it  can  be  depos- 
ited as  such  in  the  body),  or  fat  or  water  or  the  min- 
eral constituents  of  the  body;  to  the  second  class 
belong  such  substances  as  starch,  which  hinders  the 
loss  of  fat  from  the  body.  If  a  nutriment  is  defined 
as  a  substance  which,  by  decomposition,  furnishes 
living  force  to  the  body,  the  definition  would  not  be 
exhaustive,  for  it  would  exclude  water  and  the  min- 
eral constituents  of  the  body.  Alcohol  must,  there- 
fore, to  a  certain  extent,  be  regarded  as  a  nutriment, 
since,  under  its  influence,  fewer  substances  are  de- 
composed in  the  body.  It  plays,  in  this  respect,  a 
similar  (though  quantitatively  very  diflferent)  part 
to  that  of  starch,  which  also  protects  fat  from  decom- 
position, and,  when  taken  in  excess,  causes  deposi- 
tion of  fat  in  the  organs  or  fatty  degeneration.  If  a 
part  of  the  alcohol  is  decomposed  in  the  body  into 
lower  forms  of  chemical  combination,  it  must  give 
rise  to  living  force,  which  either  benefits  the  body 
in  the  form  of  heat,  or  may,  perhaps,  be  used  for  the 
performance  of  mechanical  work ;  the  same  is  true 
of  acetic  acid,  which  is  also  not  to  be  considered  as 
an  ultimate  excretory  product,  and  from  which, 
therefore,  in  decomposition,  potential  force  passes 
into  living  force. 

"'It  is  another  question,  however,  when  we  ask 
what  importance  alcohol  has  for  us  as  a  nutriment, 
and  whether  we  take  it  in  order  to  save  fat  from 
decomposition  and  furnish  us  with  living  force, — 
in  other  words,  to  introduce  a  nutriment  into  the 
10 


218  PROHIBITORY  LIQUOR  LAW. 

body.  Since  alcohol,  when  taken  in  considerable 
amount,  causes  disturbances  in  the  processes  of  the 
animal  economy,  we  cannot  introduce  it  in  quanti- 
ties sufficient  for  nourishment  as  Ave  do  other  nu- 
triments, and  in  the  amount  which  we  can  take 
without  injury  its  importance  as  a  nutriment  is  too 
small  to  be  considered.  In  this  point,  then,  I  agree 
entirely  with  Dr.  Subbotin ;  we  use  alcohol  not  on 
account  of  its  importance  as  a  nutriment,  but  on 
account  of  its  effects  as  a  stimulant  or  relish.' 

"  Professor  Voit's  definition  of  a  nutriment  is  rather 
more  comprehensive  than  those  usually  given ;  but 
it  has  the  merit  of  great  exactness,  and  of  leaving 
no  doubt  as  to  its  applicability  to  any  given  sub- 
stance. Whether  this  definition  or  any  other  be 
adopted,  it  is,  of  course,  essential,  as  a  preliminary 
to  the  discussion  of  the  nutritive  value  of  alcohol  or 
any  other  substance,  that  we  should  define  as  exactly 
as  possible  what  we  understand  by  the  terms  'nu- 
triment' and  'nutrition.' 

"Although,  as  Professor  Voit  says,  alcohol  can- 
not, under  normal  circumstances,  be  introduced  into 
the  body  in  sufficient  amount  to  be  of  any  import- 
ance as  a  nutriment  without  producing  toxic  effects, 
may  it  not  be  that  in  those  morbid  conditions  of  the 
system  where  large  amounts  of  alcohol  are  borne 
without  causing  narcotism,  the  nutritive  properties 
of  the  substance  really  become  important,  and  that 
patients  who  are  supported  by  alcohol  through  peri- 
ods of  great  weakness  or  exhaustion  are  really  nour- 
ished and  not  simply  stimulated  by  it  ?  " 


APPENDIX.  219 

We  believe  there  is  now  no  difference  worth 
noticing  from  the  opinion  that,  in  proper  doses,  it 
is  a  useful  agent.  We  cite  Dr.  Woodman,  in  the 
"London  Medical  Record,"  May  13,  1874:  — 

"Riegel  on  the  Influence  of  Alcohol  on  Temper- 
ature of  the  Human  Body :  from  Deutsches  Archiv  fiir 
Klinische  Medicin.  Riegel  concludes  that  although 
alcohol  scarcely  desei*ves  the  reputation  given  to  it 
in  England,  as  a  decided  depressor  of  temperature, 
yet,  on  the  other  hand,  it  never  essentially  raises  the 
temperature,  —  the  constant  dread  of  continental 
practitioners,  —  and  it  is  decidedly  one  of  those  things 
which  diminish  bodily  waste,  like  tea  and  coffee. 
On  the  whole,  his  experiments  confirm  those  of  Binz 
and  Bouvier  (we  may  add,  of  Dr.  Parkes,  Dogiel, 
Sydney  Ringer  —  and  the  Reporter)." 

Dr.  Binz,  of  Bonn,  as  cited  in  "The  American 
Journal  of  the  Medical  Sciences,"  January,  1874, 
p.  231,  "said  his  experiments  showed  a  threefold 
action,  —  the  diminution  of  the  heat  of  the  body, 
reduction  of  the  putrid  processes,  and  raising  of  the 
action  of  the  heart.  Alcohol  was  more  than  a  simple 
stimulant ;  it  was  a  strong  antipyretic,  and  an  equally 
powerful  antiseptic.  It  was  a  priori  to  be  expected 
that  alcohol  would  not  be  without  its  influence  on 
the  metamorphosis  of  tissues.  An  agent  that,  con- 
sumed in  large  doses,  clearly  lowered  the  combus- 
tion, must  also  be  supposed  to  decrease  the  urea  and 
the  carbonic  acid  ;  and  this  was  in  reality  the  case." 

Another  opinion  of  alcohol  is,  that  it  is  "  an  unstable 
combination  of  carbon,  hydrogen,  and  oxygen,  which> 


220  PROHIBITORY  LIQUOR  LAW, 

when  undergoing  decomposition,  is  capable  of  setting 
free  a  large  amount  of  force  {e.g.^  Avlien  burning  in 
a  spirit-lamp).  If  this  decomposition  takes  place  in 
the  body,  as  it  doubtless  does  to  a  considerable 
extent,  the  force  set  free  must  take  the  form  of  heat 
or  muscular  work.  In  other  words,  alcohol  must 
contribute  to  the  maintenance  of  the  animal  economy 
in  the  same  way  that  food  does.  The  nutritive 
jDower  of  alcohol  is,  however,  in  normal  conditions  of 
the  body,  very  slight,  for  the  reason  pointed  out  by 
Prof.  Voit.  But  when  we  see  a  jjatient  suiTeringfrom  an 
exhausting  disease,  actually  living  weeks  and  months 
on  little  else  than  a  daily  bottle  of  wine,  we  are 
forced  to  the  conclusion  that  the  toxic  influence  of 
alcohol  in  the  nervous  system  is  for  some  reason  held 
in  abeyance,  so  that  the  nutritive  power  becomes  of 
importance,  and  that  the  patient  is  really /d J,  and  not 
merely  stimulated^  by  wdne." 

Dr.  Anstie,  in  the  "  Practitioner,"  July,  1874 :  "  It  is 
scarcely  possible,  therefore,  but  that  the  solution  of 
the  questions  as  to  the  action  of  alcohol  in  the  body 
will  also  bring  about  the  discovery  of  new  physio- 
logical facts  of  great  interest  and  importance :  — 

"1.  If  alcohol  be  a  force-producing  food,  as  seems 
by  far  the  most  likely,  it  is  probably  of  great  value 
in  that  capacity,  on  account  of  the  rapidity  with 
which  its  transformations  take  place.  It  is,  however, 
abundantly  certain,  that  beyond  a  certain  dosage 
(which  is  pretty  clearly  made  out  for  the  average, 
thougli  of  course  there  are  individual  exceptions  in 
both  directions)  it  becomes  a  narcotic  poison  of  a 


APPENDIX.  221 

very  dangerous  character  in  every  respect,  not  the 
least  disadvantage  being  that  it  cannot  be  eliminated 
to  any  considerable  extent. 

"  2.  If  alcohol  does  not  disappear  by  oxidation,  it 
must  undergo  some  as  yet  quite  unknown  trans- 
formation, after  which  it  must  escape  unrecognized 
in  the  excretions.  I  have  heard  various  attempts  to 
suggest  such  modes  of  disappearance,  but  nothing, 
so  far,  which  wears  any  air  of  probability. 

"  3.  If  alcohol,  however,  be  indeed  oxidized,  and  yet 
does  not  beget  force  which  can  be  used  in  the  organ- 
ism, this  would  be  the  strangest  possible  discovery. 
Considering  the  very  high  theoretical  force-value  of 
the  600  to  800  Q:rains  of  absolute  alcohol  which  mil- 
lions  of  sober  persons  are  taking  every  day,  we  may 
well  be  hopeless  of  any  reasonable  answer  to  the 
question,  Why  does  not  this  large  development  of 
wholly  useless  force  within  the  body  produce  some 
violent  symptoms  of  disturbance  ?  " 

The  effects  produced  on  the  brain  by  alcohol  are 
much  exaggerated  in  the  estimation  of  the  public. 
"  P.  Ruge^  on  the  effect  of  alcohol  upon  the  animal 
organism,  quoted  from  Yirchow's  Archiv,  XLIX.^  in 
Rosenthal's  '  Centralblat,'  1870.  The  author  desired 
to  investigate  the  anatomical  changes  of  animal 
organs  produced  by  alcoholism,  and  experimented  on 
twenty-two  grown  dogs  and  five  rabbits.  They  finally 
got  as  much  as  100  ccm.  of  90  per  cent  alcohol  daily, 
and  that  for  months.  Upon  comparing  his  results 
with  the  Charitd  Hospital  reports  of  Berlin  for  1867 
and  1868,  he  did  not  find  any  different  results  as  to  the 


222  PROHIBITORY  LIQUOR  LAW. 

effect  of  alcohol  upon  the  human  brain.  Of  ten  per- 
sons who  died  of  delirium  tremens,  but  one  showed 
a  decided  hemorrhagic  pachymeningitis,  one  an 
increase  of  the  dura,  and  in  the  rest  the  texture  of 
the  brain  was  normal.  On  the  other  hand,  forty- 
seven  cases  of  pachymeningitis  were  caused  without 
any  abuse  of  spirits.  The  five  rabbits  did  not  show 
any  material  change  of  any  organ.  Former  obser- 
vations of  alcoholic  influence  upon  the  animal  tem- 
perature were  corroborated.  The  temperature  of 
dogs,  especially  when  they  were  intoxicated,  sank  by 
several  degrees  ;  their  pulse  and  respiration  increased 
at  the  same  time." 

"PaveyonFood  and  Dietetics"  —  the  latest  au- 
thority in  these  matters  —  says:  "It  Avill  be  seen 
that  much  divergence  of  opinion  has  prevailed  upon 
the  prime  question,  whether  alcohol  is  to  be  regarded 
as  possessing  any  alimentary  value  or  not.  It  will 
suffice  here  to  refer  the  reader  to  what  has  been 
already  mentioned,  and  to  state  that  the  weight  of 
evidence  appears  to  be  in  favor  of  the  affirmative. 
A  small  portion  seems,  undoubtedly,  to  escape  from 
the  body  unconsumed ;  but  there  is  reason  to  believe 
that  the  larger  portion  is  retained  and  turned  to 
account  in  the  system."     p.  357. 

"  Beer  is  a  refreshing,  exhilarating,  nutritive,  and, 
when  taken  in  excess,  an  intoxicating  beverage." 
p.  365. 

"Although  chemistry  displays  the  existence  of  a 
number  of  constituents  in  wine,  yet  it  may  be  con- 
sidered that  in  its  action  upon  the  system  we  have 


APPENDIX.  223 

not  to  deal  with  the  effect  of  its  independent  prin- 
ciples, but  with  a  liquid  in  which  the  ingredients 
should  be  so  amalgamated,  incorporated,  or  blended 
together  as  to  make  a  homogeneous  whole.  For 
instance,  if  we  look  to  alcohol,  which  forms  the  most 
active  component,  the  effects  of  a  certain  amount  of 
this  principle,  as  it  is  contained  in  wine,  are  not 
identical  with  those  of  the  same  amount  diluted  to 
an  equal  extent  with  water.  The  alcohol  appears 
to  become  blended  with  the  other  ingredients,  and, 
in  this  state,  to  exert  a  somewhat  modified  action 
upon  the  system."     p.  376. 

We  may  add  that  Dr.  Pavey  does  not  say  whether 
it  is  wise  or  unwise  to  take  alcoholic  drinks.  He 
leaves  the  matter  to  each  individual.  We  hold  that 
legislators  should  be  equally  discreet. 


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object  of  this  celebrated  work  is  to  show  that  the  isolation  of  the  several  fine  arts 
from  each  other  is  essential  to  their  perfection,  and  that  their  common  aim  is  the 
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tinct both  from  that  of  morality  and  of  philosophy  ;  being  limited,  strictly  speaking, 
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14     ROBERTS  BROTHERS'  PUBLICATIONS. 


THE 

INTELLECTUAL    LIFE. 

By  PHILIP   GILBERT   HAMERTON, 

AUTHOR   OF 

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which  is  steeped  in  that  sweetness  and  light,  the  virtues  of  which  Mr.  Arnold  so 
eloquently  preaches.      Compared  with   Rlr.    Hamerton's  former  writings,    '  Thrs 

Intellectual    Life'    is   incomparably  his  best   production But   above   all, 

and  specially  as  critics,  are  we  charmed  with  the  large  impartiality  of  the  writer. 
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Possessing  a  peculiarly  refined  and  delicate  nature,  a  passionate  love  of  beauty, 
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GOETHE'S 

Hermann  and  Dorothea. 

TRANSLATED  FROM  THE  GERMAN 

By    ELLEN    FROTHINGHAM. 

WITH    ILLUSTRATIONS. 

Thin  Svo,  cloth,  gilt,  bevelled  boards.     Price  S2.00. 
A  cheaper  edition,  i6mo,  cloth.     Price  $1.00. 

"Miss  Frothingham's  translation  is  something  to  be  glad  of:  it  lends  itself 
kindly  to  perusal,  and  it  presents  Goethe's  cliarming  poem  in  the  metre  of  tha 
original.  ...  It  is  not  a  poem  which  could  be  profitably  used  in  an  argument  for 
the  enlargement  of  the  sphere  of  woman  :  it  teaches  her  subjection,  indeed,  from 
the  lips  of  a  beautiful  girl,  which  are  always  so  fatally  convincing  ;  but  it  has  its 
charm,  nevertheless,  and  will  serve  at  least  for  an  agreeable  picture  of  an  age  when 
the  ideal  woman  was  a  creature  around  which  grew  the  beauty  and  comfort  and 
security  of  heme."  — Atla7itic  Mojithly, 

"The  poem  itself  is  bewitching.  Of  the  same  metre  as  Longfellow's  '  Evan- 
geline,' its  sweet  and  measured  cadences  carry  the  reader  onward  with  a  real  pleas- 
ure as  he  becomes  more  and  more  absorbed  in  this  descriptive  wooing  song.  It  i* 
a  sweet  volume  to  read  aloud  in  a  select  circle  of  intelligent  friends."  — Providenct 
Press. 

"  Miss  Frothingham  has  done  a  good  service,  and  done  it  well,  in  translating 
this  famous  idyl,  which  has  been  justly  called  *  one  of  the  most  faultless  poems  of 
modern  times.'  Nothing  can  surpass  the  simplicity,  tenderness,  and  grace  of  the 
original,  and  these  have  been  well  preserved  in  Miss  Frothingham's  version.  Her 
success  is  worthy  of  the  highest  praise,  and  the  mere  English  reader  can  .scarcely 
fail  to  read  the  poem  with  the  same  delight  with  which  it  has  always  been  read  by 
those  familiar  with  the  German.  Its  charming  pictures  of  domestic  life,  th© 
strength  and  delicacy  of  its  characterization,  the  j)urity  of  tone  and  ardent  love  of 
country  wlich  breathe  through  it,  must  always  make  it  one  of  the  most  admired 
of  Goethe's  \sox\i%.^''  —  Bostoi  Christian  Register. 


Sold  everyxvhere.     Mailed,  postpaid,  by  the  Pitblis  ierSf 

ROBERTS   BROTHERS,   Boston. 


